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Cablevision Asks Supreme Court to Review Constitutionality of Must-Carry

As promised, Cablevision has asked the Supreme Court to
review the constitutionality of the must-carry rules, whichrequire cable operators to carry local broadcast stations.

Cablevision points out in its filing 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Cablevision concedes to the court, "has been replaced by vibrant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

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 said.

"The continuing validity of that intrusion on
constitutionally protected interests and the permissibility of expanding its
application to new contexts present precisely the kind of important
constitutional issues that should constitute the core of this Court's docket."

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.

The company is taking aim at the entire must-carry regime
armed with the decision by the D.C. Circuit earlier in Comcast v. FCC this
year, which threw out the 30% cap on one cable operator's sub count. It plans
to argue that the lack of robust competition and presence of a cable bottleneck
no longer exist, and were the underpinnings of the Supreme Court's close
decisions to uphold the rules in two earlier challenges by Turner.

Cablevision got a Dec. 9 stay of the Second Circuit's
mandate for WRNN carriage pending the outcome of the company's request for a
Supreme Court hearing. A source says the company was planning to challenge the
WRNN decision with or without the Comcast decision, given the rise in
competition in the marketplace, but that the D.C. decision just provided more

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 provisionsof must-carry. The full court in October rejected Cablevision's petition
for a re-hearing before the full court.

In the process, the 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. That argument could have wider implications.

One proposal floated for reclaiming spectrum from
broadcasters for wireless broadband proposed must-carry for a cable-only HD
signal as way to reduce the bandwidth broadcasters were using.

Cablevision argues that the Second Circuit's decision, which
was backed by the National Association of Broadcasters, conflicts with the 1994
Turner I and II decisions narrowly upholding must-carry, as well as the D.C.
Circuit's conclusion in the cable-cap case that "now that cable operators
are subject to robust competition, the FCC can no longer identify the
'sufficient' basis" demanded by the Supreme Court in Turner Broadcasting
System, Inc. v. FCC, 512 U.S. 622 (1994) ('Turner I'), for imposing upon cable
operators "special obligations" like must carry.

A split in federal appeals court decisions is one of the
tests for the Supreme Court's decision to hear an appeal, as are cases that
implicate the First Amendment, which Cablevision argues this does.

"The Supreme Court has wisely found that must-carry rules protect the public's access to free and local niche programming, including foreign language, religious, and independent TV stations," said NAB spokesman Dennis Wharton in response to news of the filing. "We're disappointed that gatekeeper pay cable operators are seeking to deny millions of Americans an opportunity to continue seeing these unique local TV stations."

John Eggerton
John Eggerton

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.