C-SPAN is joining Cablevision in
asking the Supreme Court to overturn the must-carry rules, which require cable
operators to carry local TV stations that elect not to negotiate
"Amid today's expanding marketplace of program delivery options,
must-carry is a relic of the past that should be clicked and dragged to the
recycle bin of regulatory overkill," said C-SPAN
VP and General Counsel Bruce Collins in announcing the move.
The cable public affairs channel, which must compete with those TV stations for
channel space, has long argued that the fact that broadcasters have a
guaranteed carriage right while channels like C-SPAN have
to compete for what space is left violates
the First Amendment.
C-SPAN argues that its case now is even
stronger with a more competitive marketplace for TV station fare. C-SPAN
argued in earlier challenges that A/B switches that allow cable or satellite
subs to switch to over-the-air reception were a less infringing way to preserve
access to broadcast stations.
The Supreme Court, in the second Turner challenge to the rules in 1997 (it's
first was in 1994), said that the switch was not a feasible alternative,
echoing Congress in adopting the 1992 rules. But C-SPAN
says that today, the switch is built into TVs and can be "easily"
controlled from a remote.
rules, arguing that the rationale for the rules has been gutted.
C-SPAN, which has argued against the rules
since they were adopted in 1992, planned to file a brief in support of
Cablevision's challenge, according to a copy of the brief supplied to B&C
and Multichannel News.
"I think that given our record in opposing must-carry on First Amendment
grounds, our absence as an amicus would be notable," Collins said.
That opposition dates back to C-SPAN CEO
Brian Lamb's testimony in 1992 when the Act was being drafted. C-SPAN
also backed Turner's challenges to the rules and opposed efforts by then FCC
Chairman Kevin Martin to extend them to the simulcasts of digital and analog
signals in the run-up to the DTV transition.
"C-SPAN has always asserted that the establishment
of a hierarchy of speakers, whereby broadcasters are guaranteed cable carriage
under the must-carry regime while cable programmers like C-SPAN
must compete for whatever carriage remains, cannot be justified under the First
Amendment," the company writes.
"C-SPAN believes, as courts have
already begun to recognize, that the factual underpinnings supporting
must-carry have evaporated. As a consequence, the gamesmanship that the
must-carry regime has created, in which a home shopping station can manipulate
the must-carry rules to reach a whole new cable audience far beyond its
broadcast market and thereby bump a cable programmer like C-SPAN,
should not be permitted to continue."
C-SPAN also tells the court that in the
1990's, 12 million cable homes lost access to some or all of C-SPAN
programming as systems made room for hundreds of broadcast stations. "In
the instant case, the compelled carriage of WRNN sets up C-SPAN
and other non-broadcast programmers to face the same fate again."
Cablevision wants the court to hear the cable company's appeal of a Second
Circuit decision upholding the FCC's must-carry mandate for station WRNN. A
three-judge panel of the Second Circuit back in June 2009 rejected
Cablevision's challenge to an FCC order requiring carriage of WRNN New York in
some Long Island communities under the
market-modification provisions of must-carry. The full court in October
rejected Cablevision's petition for a re-hearing before the full court.
In the process, the court took an expansive view of the benefits of the
must-carry rule, citing the Supreme Court's Turner decision and concluding that
it did not mean to limit must-carry to the minimum of replicating a DMA.
On Dec. 9, Cablevision got a stay of the Second Circuit's mandate for WRNN
carriage pending the outcome of the request for a Supreme Court hearing.
If the WRNN carriage update is upheld, says C-SPAN,
"WRNN will have extended its home shopping programming to a new cable
audience that never would have seen its over-the-air signal, and Cablevision
will be deprived of its editorial rights. C-SPAN
will either lose its audience (if it is dropped) or have its audience reduced
(if it is moved to a less widely distributed tier)."