A group of fiscal conservatives including the Americans for Tax Reform, Property Rights Alliance, and the National Taxpayers Union has told the FCC not to reverse an earlier decision and grant digital multicast must-carry to broadcasters.
Following one of the cable industry's talking points, the groups argue in a letter to the commissioners that for the government to require cable operators to carry up to six times of more "could increase the amount of property seized from cable providers by six times or more, with no just compensation from broadcasters--a likely violation of the takings clause of the Constitution."
The FCC twice decided under two different chairmen that Congress meant to grant broadcasters guaranteed carriage of only a single digital replication of their primary signal, not whatever free channels would fit into their digital spectrum allotment.
The takings clause of the Fifth Amendment, which is sort of analogous to the First Amendment for free-market conservatives, holds that private property can't be taken by the government without just compensation.
"[A]llow the free market to determine the programming offered to cable subscribers," they advised the FCC, saying that "cable operators have built large private infrastructure at enormous costs, and depend upon private subscribers for their survival and success.... To give broadcasters a free ride on cable operators' private infrastructure would represent the worst sort of government mandate and would fly in the face of the property rights protections found in the Constitution."