GUEST COMMENTARY BY HARRY COLE

Must Carry Proves To Have Staying Power

The Supreme Court last month declined an opportunity to consider the constitutionality of must carry, leaving the "thorn in the side of the cable industry" until another challenge is mounted.

The must-carry rules have dodged another bullet. The Supreme Court last month declined to hear an appeal filed by Cablevision of last year’s decision by the U.S. Court of Appeals for the Second Circuit upholding a must-carry “market modification” ruling by the FCC.

The must-carry rules have long been a thorn in the side of the cable industry — and understandably so. Those rules compel cable companies to carry local stations in their markets, for free. Of course, recent developments on the retransmission consent front might indicate that local station carriage may in fact have considerable value to cable operators.  But still, the concept of “must-carry” — where the government orders a company to give away some of its services for free — is a source of considerable unhappiness in Cable Land.

In the 1990s, the cable industry launched a full-scale attack on must carry, and came close to getting it tossed by the Supreme Court a couple of times. But in both instances (known to cognoscenti as the “Turner” decisions — since Turner Broadcasting was the named petitioner in both the 1994 and the 1997 cases), a narrowly-divided court upheld the FCC’s rules and the Communications Act provisions that gave rise to them.

The Turner decisions were noteworthy because they involved “facial” challenges to must-carry. That is, the challengers’ claim was that the law was unconstitutional on its face, without regard to any particular set of facts to which the law might be applied. A bare majority of the Supremes, apparently convinced that the law might be constitutional in at least some settings, were not inclined to go that far. However, they reserved judgment as to whether must carry would survive an “as applied” attack — a challenge based on a specific factual setting, depending, of course, on the peculiar facts of the case.

Cablevision presumably thought that it had an excellent candidate for an “as applied” challenge when WRNN, a station in Kingston, N.Y. — about 100 miles north of New York City — asserted must-carry rights on some Cablevision systems in Long Island. The station’s signal had been entitled to must carry on those systems in the early 1990s, but Cablevision had convinced the commission to exclude those systems from that obligation, relying in particular on the reach (or lack thereof) of the station’s Grade B contour. No problem. The station simply moved its transmitter about 50 miles closer to NYC, thereby correcting the Grade B shortfall. 

With its newly shifted Grade B in place, the station asked the commission to restore its previous must-carry rights on the Long Island systems. The commission agreed, even though the Media Bureau (which had the first crack at the issue) appeared less than firmly convinced that must carry was warranted. Still, for both the bureau and the commission, the Grade B issue was plainly important.

BRAND CONNECTIONS

Since the Turner cases pointed to the goal of preserving local broadcasting as a primary justification for the must-carry rules, the Kingston case seemed to have obvious potential for bursting that bubble. After all, how could carriage of a station on systems more than 100 miles away be said to be doing anything for “local” broadcasting?

Maybe not a lot in Cablevision’s eyes, but at least enough in the Second Circuit’s eyes to uphold the FCC’s decision. 

Actually, the precise quantum of “local” programming and the precise proximity of Kingston to the cable systems in question were not nearly as important to the Second Circuit as was a more obscure legalistic factor: was the market modification at issue here “content neutral”? If a law is “content neutral,” then it has far fewer First Amendment problems than a law which is “content based.”

In the first Turner decision, the Supreme Court had declined to decide whether a market modification motivated by concerns for localism would be “content neutral” or “content based,” although the court did hint that it might be the latter, which would have been good for Cablevision in the Second Circuit. Unfortunately for Cablevision, though, the Second Circuit decided that the FCC’s action was content neutral.

And that determination, in turn, made it easy for the Circuit to conclude that there was no First Amendment problem here at all. The Circuit had even fewer problems with Cablevision’s Fifth Amendment claim. (Cablevision had argued that the market modification and resulting must-carry obligations imposed an unlawful “taking” of Cablevision’s property; the Second Circuit disagreed.)

But as a practical matter, the Second Circuit’s decision, while no doubt disappointing to Cablevision, still provided an important opportunity to get the Supreme Court involved in must-carry again. If you’re looking for a definitive determination that must-carry (including its various components, such as market modifications) is unconstitutional, you will eventually have to get to the Supremes with a good set of facts. The WRNN case seemed to provide just that.

For some reason, though, the Supreme Court was not inclined to take the case. Why? It’s impossible to tell. In denying Cablevision’s petition (technically referred to as a “petition for certiorari” or a “cert petition”), the court offered no insight, as is its custom in such matters.  The Supremes’ order consists of a heading labeled simply “Certiorari Denied,” followed by a nine-page list of a couple hundred entries, each consisting solely of the docket number and case name. The Cablevision case is just one of those terse entries.

Importantly, a denial of a cert petition does not constitute a decision on the merits of the arguments advanced in the underlying petition. No meaning — good, bad or indifferent for any of the parties involved — can be read into the denial of Cablevision’s petition. As a result, the Turner cases still represent the Supreme Court’s primary take on must carry — and the vulnerability of those cases to effective attack remains just as it was before the denial of Cablevision’s cert petition.

Harry Cole is a partner at Fletcher, Heald & Hildreth. He can be reached at [email protected]


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