Supreme Court Conferences on Must-Carry Challenge

High court discussing whether to hear Cablevision's challenge to must-carry rules
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Cablevision's challenge to the must-carry rules is up for
consideration at the Supreme Court justice's Friday private conference.

According
to the court, the various
briefs in the case were distributed April 14 for conferencing on April
30.  NCTA, C-SPAN, Time Warner, and Discovery
have all filed amicus briefs supporting Cablevision.

The
Friday discussion of the case means a decision on whether to grant cert
(hear the case) is likely to come Monday. That is not a guarantee. The
court's recent decision to hear the video game violence case, for
example, was conferenced last fall, pointed out one veteran attorney who
has argued before the High Court. "But it is likely to come Monday."

Even
the court says so. "Generally, if a case is considered at a Conference,
viewers can expect that the disposition of a case will be announced on
an Orders List that will be released at 10 a.m. the following Monday,"
the court explains on its Web site.

Cablevision in January asked
the Supreme Court to review
the constitutionality of the must-carry rules, which require cable
operators to carry local broadcast stations.

Cablevision pointed
out in its appeal to the court 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a cable monopoly, Cablevision concedes to the court, "has been replaced
by vibrant competition."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 bloom.

The rationale for the Turner
decisions has been gutted, the company says, while the FCC continues to
subsume cable's editorial judgment. The commission has even expanded the
rules to cover conduct that would not even be covered by the Turner
rationale even if it were still relevant, the company says.

Specifically,
Cablevision wants the court to hear the cable company's appeal of a
Second Circuit decision upholding the FCC's must-carry mandate for
station WRNN.

A three-judge panel of the Second Circuit back in
June 2009 rejected Cablevision's challenge to an FCC order requiring
carriage of WRNN New York in some Long Island communities under the
market-modification provisions of must-carry. The full court in October
rejected Cablevision's petition for a re-hearing. In the process, that
court took an expansive view of the benefits of the must-carry rule,
citing the Supreme Court's Turner decision and concluding that it did
not mean to limit must-carry to the minimum of replicating a DMA.

In
its Supreme Court filing Jan. 27, Cablevision asks the court why a
cable operator should be compelled to carry programming of a broadcast
station in an area in which the station lacks an over-the air audience.

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