Cable Leased-Access Critics, Comrades Clash Over Constitutionality
The cable industry and allies strongly disagree with public, educational and government (PEG) access interests and backers over whether FCC cable leased-access requirements can withstand First Amendment scrutiny changes in the video marketplace (see 1906060029), in docket 07-42 postings this week in response to the agency's Further NPRM.
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Whether under strict or intermediate First Amendment scrutiny, the leased access requirements don't stand up, and the FCC -- though it can't eliminate them -- should reduce those First Amendment burdens, NCTA said. That would mean axing the rate formula and letting rates be the result of operator-lessee negotiations, though that would be problematic since cable operators would still be required to negotiate with leased access programmers, it said. Alternately, the FCC could allow calculation of rates using tier-specific implicit fees, it said.
Legacy cable regulation traditionally has been upheld because of bottlenecks in video programming distribution, but those bottlenecks no longer exist, Free State Foundation said. With the bottleneck gone, leased access rules would likely no longer be subject to intermediate scrutiny -- which is easier for government to satisfy -- and fall under strict scrutiny, the International Center for Law & Economics said. The leased access rules likely wouldn't survive strict scrutiny since there are other, less restrictive ways to promote widespread dissemination of information from multiple sources, ICLE said. Americans for Prosperity also criticized the leased access rules regime.
Even if online video distribution routes has reduced the need for cable leased access, which it hasn't, only Congress can rewrite the Cable Act and the FCC doesn't have the authority "to constitutionally trump acts of Congress," PEG access group Alliance for Communications Democracy said. ACD said the market changes noted in the FNPRM "are exaggerated in critical ways" and haven't made content diversity unimportant or not in the government's interest. The changing media marketplace hasn't increased the burden that leased access or PEG requirements put on cable operators, it said.
Despite leased access "not [having] been a wild success" since its 1984 inception, the FCC can't justify "a shabby and unnecessary constitutional analysis" to try to further weaken the rules, Free Press said. It said there's no evidence the online video marketplace can self-regulate toward diversity and competition on cable systems, and without the rules cable operators wouldn't be accountable to local communities.
America's Communications Association urged the FCC to set a minimum rate a cable operator can charge for leased access or adjust the formula to not require offering leased access capacity at too-low a price. It didn't address the First Amendment issue but instead said cable operators should be able to use a single data set to respond to leased access requests instead of having to pull data and recalculate the formula for individual requests.