The must-carry rules don't have a lot of friends in the
cable industry. Or put another way, a Cablevision challenge to the rules has a
lot of friends.
Discovery Communications was the latest to file a Friend of the Court brief
with the Supreme Court backing that challenge.
Among others to file so called amicus briefs were C-SPAN and the National
Association of Broadcasters.
Discovery argues in its brief that by giving broadcasters preference--the rules
require cable operators to carry any broadcaster who elects not to negotiate
carriage payments--the rule makes second-class speakers of cable channels like
Discovery. C-SPAN made a similar argument.
Discovery says that a basic tenet of First Amendment law is that "the
Government cannot take the right to speak from some speakers and give it to
others." But that is what the must-carry rules do, it argues.
Discovery used one of the court's most recent decisions to buttress its
argument, its ruling in the Citizen's United case Jan. 21 overturning direct
funding of political speech by corporations and unions. "Rather than
competing on the merits of their content, broadcasters enjoy the benefits of a
statutory preference for their speech over the speech of cable
programmers," said Discovery, arguing that it was analogous to the
preference that the court overturned in the Citizens United case, in which it
held that "a governmental preference for one speaker over another
"deprives the public of the right and privilege to determine for itself
what speech and speakers are worthy of consideration."
Discovery also echoed arguments made by Cablevision and others that the
competitive landscape has changed sufficiently to moot the court's earlier
reliance on a cable "bottleneck" to justify speech regulation.
Discovery urged the court to take the case "to determine whether the
statute's clear preference for broadcasters' speech over cable programmers'
speech can withstand First Amendment scrutiny under current marketplace
The chorus of NCTA and C-SPAN and Cablevision and Discovery was arguing that
answer should be a definitive 'no.'