The National Cable & Telecommunications Association is
among those supporting Cablevision's appeal of the must-carry rules at the
The trade group Friday (Feb. 26) said it had filed a brief in support of the
challenge. In that brief, NCTA cited the FCC's inquiry into whether broadcast
spectrum could be reclaimed for wireless broadband as part of its argument (the
FCC just this week outlined is reclamation/auction plan). "With even the
Commission suggesting that broadcast spectrum should be put to better use, it
is clear that broadcast television no longer serves an 'important' government
interest to the extent that it used to," said NCTA.
NCTA said that "changed circumstance" has "drastically"
shifted the balance between the government's interest in must-carry and its
burden on speech.
Cablevision pointed out in its filing that even more than a decade ago, the
Supreme Court's decisions--two of them--upholding must-carry was razor thin.
The cable operator says that in the intervening years "the factual
underpinnings of those decisions have evaporated." What was once a cable
monopoly, Cablevision concedes to the court, "has been replaced by vibrant
competition." Rather than being an MVPD bottleneck, Cablevision suggests,
the market has been reshaped into a wide-necked vase in which all flowers can
NCTA agrees. It points out that the High Court in upholding must-carry in the
Turner cases recognized that the rule did impinge on speech, but pointed to
cable's bottleneck power as requiring only intermediate scrutiny of its effects
on speech, rather than strict scrutiny.
That has changed; cable is now faced with lots of competition. Given all that
competition, must-carry's restrictions on cable speech does not pass muster
under either strict or intermediate scrutiny, said NCTA in asking the court to hear
the Cablevision challenge.
also filed a brief in support of the challenge earlier this week.
Specifically, Cablevision wants the court to hear
its appeal of a Second Circuit decision upholding the FCC's must-carry
mandate for station WRNN.