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Sotomayor on Takings and TV

Supreme Court nominee Sonia Sotomayor said Tuesday that she did not believe, as a matter of law, that the government could take private property without just compensation.

But she also said that what constituted a takings was a complex issue. For example, she said, there was a difference between taking someone’s home, for example, and a regulation that may or may not include a taking.

She was responding to questions by Sen. Charles Grassley (R-Iowa) about her view of the clause.

The takings clause is of interest to the cable industry because it is used by cable operators in their arguments against against must-carry. The FCC’s rule requiring cable operators to carry local TV station signals was upheld by a 5-4 Supreme Court in the Turner case.

The takings clause of the Fifth Amendment states that “private property shall not be taken for a public use without just compensation.”

“No one gave us the bandwidth in our cable plant for free,” NCTA President Kyle McSlarrow said in a Media Institute speech in 2005. “we created it. That spectrum has value, and we can use that bandwidth to do some spectacular things that will surpass anything consumers today are even thinking about. But every time someone thinks they can just take a slice of bandwidth here, or a slice there–whether you are talking mandatory dual carriage or multicasting or something else–you reduce the incentives to invest, you pick winners and losers for carriage on a pipe that does not have unlimited bandwidth…”

Senator Russ Feingold (D-Wis.) briefly brought up the issue of TV in the Supreme Court. He said he was enjoying listening to her, praising her obvious command of the law and the way she expressed it. Then

he followed up with the the hook. He said he hoped that he would be able to watch her similarly impressive Supreme Court demeanor “for many years to come from the comfort of our family rooms and living rooms.”

Sotomayor’s interrupted at the point with the observation: “You were a very good lawyer, weren’t you senator.”

Feingold did not follow up, but look for Senator Arlen Specter (D-Pa.)–former prosecutor, former chair of the Judiciary committee and former Republican–to quiz her on the issue. He is a big supporter of cameras in federal courts and has signaled that will be one of his topics of conversation.

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.