In what has become a parade of legal challenges to Federal Communications Commission rules, the National Cable & Telecommunications Association asked the D.C. Court of Appeals to throw out the FCC's decision to lower leased-access rights and tighten the rules.
Like similar suits filed recently against the FCC's cable-ownership cap, newspaper-broadcast cross-ownership rules, profanity findings and more, the NCTA called the decision arbitrary and capricious and a violation of procedure, but also threw in “unlawful burden on speech" (First Amendment) and an unconstitutional "uncompensated taking of private property" (Fifth Amendment).
The commission in November voted to lower the rates cable operators charged leased-access programmers and to speed up the complaint process, with the majority arguing that it would lead to greater program diversity.
Cable operators are required by law to set aside channels for lease by outside programmers.
FCC chairman Kevin Martin has argued that there are relatively few leased-access programmers because rates have been artificially high, and that lowering the rates will "increase the use of leased-access channels and, thereby, enhance the diversity of programming.”
By contrast, Republican commissioner Robert McDowell, who opposed the changes, argued that the reason why leased access is not prevalent is that it is an unworkable business model -- paying for carriage, rather than receiving a fee -- and that the rule change will result in a lack of diversity.
McDowell called the rules legally suspect at the time, saying that the FCC's decision not to apply the rate cut to infomercial-based leased access made it legally suspect.