New Vehicle For Must-Carry Challenge Not Obvious
Cable operators and programmers may look for a new vehicle to challenge rules granting mandatory cable carriage to TV stations, after the Supreme Court declined to hear Cablevision’s challenge to those rules in the context of a market modification proceeding, industry lawyers said. The Supreme Court Monday denied Cablevision’s petition for certiorari in Cablevision v. FCC without elaborating. Finding a new avenue to bring the rules back before the high court may not be easy, lawyers said.
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The cable industry seems motivated to bring further challenges, said broadcast lawyer Jack Goodman of WilmerHale. The industry has sought other avenues in the past and “it appears that will continue,” he said. But bringing a facial challenge to the constitutionality of the rules will be difficult because the Supreme Court’s precedent upholding the rules after Congress adopted them in 1992 still stands, Goodman said.
Another option would be to take a new must-carry complaint through the FCC, but that’s also problematic, said cable lawyer Gary Lutzker of Dow Lohnes. Complaints at the commission are often delayed, and it could be years before the challenge would reach another appeals court, he said. “Cablevision had their chance and they were not going to let it go by,” he said. “And maybe that’s because they concluded there’s not going to be very many other opportunities absent some change in the statute."
It’s not a surprise the court declined to hear the case, said analyst Paul Gallant of Concept Capital. “The odds were always against it, but I think people felt this one had a decent chance because of the court’s recent interest in strengthening corporate speech rights,” he said. “The fact that the court even took extra time to decide whether to grant a writ suggests that it might have been a close call."
The case involved a market-modification order from WRNN-TV Kingston, N.Y., gaining carriage on Cablevision’s Long Island systems after relocating its transmitter. The case is an example of how out of date the must-carry rules are, a Cablevision spokesman said. “We continue to believe that WRNN -- a shopping channel that moved its transmitter to reach our service area but has no local viewers -- has manipulated the must-carry rules at our customers’ expense,” he said. “In doing so, WRNN has exposed just how obsolete these regulations have become, especially in light of the vigorous competition and other market conditions that have developed over the last decade."
Programmers also lamented the court’s decision not to hear the case. “We are disappointed in the court’s rejection of certiorari,” said C-SPAN General Counsel Bruce Collins. “When the opportunity arises to challenge this infringement on cable programmers speech rights, we'll probably be there too."
Broadcasters cheered the news. “By denying the cable-backed petition for review, the Supreme Court validates NAB’s longstanding assertion that must-carry rules protect the public’s access to niche broadcast programming, including foreign language, religious and independent TV,” said a spokesman for that group.