U.S. Supreme Court Declines To Hear Must-Carry Challenge

The U.S. Supreme Court has denied Cablevision Systems' request that it take another look at must-carry.

So much for Solicitor General Elena Kagan potentially having to recuse herself from the case if she becomes the newest justice on the high court.

The court on Monday released its list of cases whose appeals (requests for certiorari) were denied, and Cablevision Systems vs. FCC was on it.

The court does not have to explain why it denied the appeal, and didn't in this case either. Kagan's name had been on the brief asking the court to not take the case, so it is a victory for both the Obama administration and the FCC.

Cablevision in January asked the Supreme Court to review the constitutionality of the must-carry rules, which require cable operators to carry local broadcast stations.

The National Association of Broadcasters understandably was pleased with the decision.

"Today is a great day for the millions of Americans who rely on the diverse lineup of programming supplied by free and local broadcasters," NAB spokesman Dennis Wharton said. "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 stations."

Cablevision had pointed out in its appeal to the court that even more than a decade ago, the Supreme Court's decisions -- two of them -- upholding must-carry were 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What was once a cable monopoly, Cablevision conceded to the court, "has been replaced by vibrant competition." Rather than being an MVPD bottleneck, Cablevision suggested, the market has been reshaped into a wide-necked vase in which all flowers can bloom.

The rationale for the Turner decisions has been gutted, the company said, 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 says.

Specifically, Cablevision wanted the court to hear the cable company's appeal of a Second Circuit decision upholding the FCC's must-carry mandate for station WRNN.

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 provisions of must-carry. The full court in October 2009 rejected Cablevision's petition for a rehearing. In the process, that 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.

Cablevision Monday 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. 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."

In its Supreme Court filing Jan. 27, Cablevision asked 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.

For now, that question will go unanswered, at least in the highest court in the land.

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.