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Court Stays Leased- Access Rule Change - Broadcasting & Cable

Court Stays Leased- Access Rule Change

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Saying that the cable industry has shown "some likelihood" of suffering irreparable harm and has the potential for winning on its merits, the Sixth Circuit Court of Appeals stayed enforcement of the Federal Communications Commission's leased-access-rule changes until the National Cable & Telecommunications Association can make its case against them in court.

The FCC voted in November to lower the rates cable operators could charge leased-access programmers and speed up the complaint process. With the majority arguing that the change would lead to greater program diversity, the commission released the order in February.

The NCTA filed suit against the new rules March 13, calling the decision arbitrary and capricious and a violation of procedure, as well as an "unlawful burden on speech" (First Amendment) and an unconstitutional "uncompensated taking of private property" (Fifth Amendment).

C-SPAN, TV One, Discovery Communications and A&E Television Networks, which joined the NCTA in the challenge, told the court that without a stay, the changes would cause "irreparable harm" and "infringe on cable programmers' First Amendment rights."

The FCC opposed the stay, disputing the merits of the argument and saying the NCTA had not exhausted its administrative remedies. The court disagreed.

The NCTA also sought a stay of the rules at the FCC, but the commission has not ruled on it and Chairman Kevin Martin indicated he did not favor it.

Charlie Stogner of the Leased Access Programmers Association, who had been trying to find out what rates he would have to pay operators, said he was "disappointed" by the decision.

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