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Cable faces unsympathetic D.C. court

The cable television industry took a beating yesterday while trying to persuade a federal court to strike down portions of the new cable law.

A decidedly unsympathetic three-judge panel of the U.S. District Court heard arguments why it should invalidate provisions of the 1992 Cable Act regarding must-carry and retransmission consent. Judging from the bench’s comments, cable faces an uphill battle.

At issue were five separate suits brought by cable industry entities including Turner Broadcasting, Daniels Cablevision, Time Warner Entertainment, Discovery Communications and the National Cable Television Association. The plaintiffs argued that their First Amendment rights were violated by the law.

But the trio of jurists had difficulty balancing those arguments against concerns of Congress when it passed the law last fall. “You’ve got to get realistic — there’s a monopoly out there,” railed Judge Stanley Sporkin to NCTA attorney Joel Klein.

Sporkin, joined by judges Thomas Jackson and Stephen Williams, repeatedly challenged the cable corps of attorneys to justify their First Amendment arguments over must-carry against their industry’s efforts to keep the “Baby Bells” out of the cable business.

“Are you opposing the Baby Bells?” asked Judge Sporkin of Time Warner attorney Stewart Gold. “Not in this proceeding,” Gold responded to laughter from a packed court room.

The judges are slated to decide within a month the merits of cable’s challenges concerning must-carry and retransmission consent. All other issues before the court, including provisions on rate regulation, program access and leased access channels, will be heard separately by Jackson and decided later.

The government’s case is being defended by the Justice Dept., which says it would immediately ask the U.S. Supreme Court to review a decision against its interests.

The cable industry’s principal gripe with the new law is a provision that permits broadcasters either to force cable operators to carry signals for free under a must-carry provision or to negotiate with the broadcasters for retransmission consent. The law also requires most cable operators to set aside 33% of their channels for carriage of local broadcast signals.

Cable reps argued that the provisions unconstitutionally restrict the cable industry’s free speech rights in favor of the rights of broadcasters. What’s more, any decision to strike down only oneof the two provisions would render the law unworkable, they said.

The arguments were challenged by impatient judges who clearly disagreed that First Amendment issues are at stake.

“Congress is not trying to regulate your program content,” said Judge Sporkin. “But there is chaos here and a lot of problems. There is a tremendous amount of greed that took place, and Congress stepped in.”

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