The U.S. Dept. of Justice says it will not defend the constitutionality of the must-carry rules that are contained in new cable TV legislation enacted last month over a veto by President Bush.

Justice’s Civil Division said it could not ethically defend language in the law that it opposes on constitutional grounds.

In his veto message to Congress, President Bush voiced opposition to the must-carry provision. Justice provided the analysis to support that view.

One of the primary functions of the department is to defend statutes against constitutional attacks. It reportedly is unprecedented for Justice to shirk that duty unless the law is clearly unconstitutional or if it impinges on executive-branch prerogatives.

A broadcast industry attorney said it is not clear what impact the division’s decision will have, but suggested that the Clinton administration might take a fresh view.

Justice said its decision not to defend does not apply to the law’s provision on retransmission consent. Both provisions have been challenged under the First Amendment by Turner Broadcasting System and Daniels Cablevision Inc.

The frequently litigated must-carry concept requires cable TV systems to carry “qualified” local broadcast signals. The cable industry has long considered the reg a violation of its free speech rights. The U.S. Supreme Court has declined to rule on the matter.

Retransmission regs stipulate a fee for cable’s carriage of the local signals.

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