FCC Democrats, Allies See Looming 1st Amendment Fight Over Cable Rules
The argument that changing technology has left FCC leased access rules at odds with the First Amendment rights of cable operators is seemingly a step toward axing those and other content carriage requirements, said the public, educational and government channel community and Democratic commissioners Thursday. Commissioners adopted the leased access item on their meeting agenda.
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Big technology and market changes in the video distribution world "cast substantial doubt on the constitutional foundation for our leased access rules," said the draft order. An accompanying Further NPRM would seek comment on whether the remaining leased access requirements can withstand First Amendment scrutiny given those video market changes. The final order wasn't released Thursday but hadn't changed substantively from the draft, Media Bureau Chief Michelle Carey said in response to us during Q&A.
The agency is echoing an often-repeated NCTA argument that public interest obligations violate cable's right as a publisher, emailed Alliance for Community Media President Mike Wassenaar. Courts rejected the "zombie idea ... and yet it keeps moving on inexorably," he said. Wassenaar said Commissioner Geoffrey Starks "is right to be concerned about it being used as a tool to eliminate all public interest requirements."
Starks and Jessica Rosenworcel dissented in part on the constitutional issues. Starks said the item's First Amendment analysis "goes too far" and could jeopardize other cable carriage obligations. He said the abundance of over-the-top outlets doesn't necessitate a reinterpretation of the agency's First Amendment principles on cable, which could "have a sweeping impact" on everything from PEG channels and must-carry elections of local broadcasters to the program carriage regime and kidvid.
Rosenworcel said the item sets a particularly high bar for leased access operators in the form of deposits and full-time capacity channel purchases, but the rules are due for "a reboot." She called the free speech concerns "overbroad and wrong." She said rather than running contrary to the First Amendment, the leased access rules -- which are narrowly tailored and not content based -- are aimed at increasing the number of speakers and variety of viewpoints and follow what Congress wanted with the Cable Communications Policy Act.
Arguing this amendment "is a sword given to government to level the playing field of ideas" is dangerous, Commissioner Brendan Carr said after the meeting. He said any number of FCC matters raise such concerns. During the meeting, Carr tweeted that the First Amendment is a leash on government -- "Disappointed that my Democrat FCC colleagues now invoke it as a basis for infringing the free speech rights of entities we regulate."
The leased access rules regime is "the Betamax ... of FCC video regulation," Chairman Ajit Pai said: "This is real progress, even against the backdrop of serious concerns that have been raised (concerns that I share) about the constitutionality of this entire regime." Asked after the meeting whether he philosophically saw First Amendment issues with other existing media carriage rules, Pai said, “I wouldn’t read more into my comments” beyond their applicability to the leased access proceeding.
Commissioner Mike O'Rielly said the item's affirmation that OTT video is a substitute for traditional video distribution should inform future media actions. He said after the meeting that such a market-based OTT analysis could be important in any number of proceedings, such as media ownership and kidvid.
Cable applauded the vote. America’s Communications Association said axing the part-time requirement, giving a longer deadline for responding to requests and requiring responses only to bona fide requests "will do a lot to reduce burdens." "We encourage the Commission to continue finding ways to clear away dated regulatory underbrush in today’s dynamic marketplace," NCTA said.