The U.S. Dept. of Justice has offered a ringing endorsement of a provision in the new cable law that requires cable operators to guarantee carriage of most broadcast stations.In comments filed in federal court here, the Justice Dept. rejected as “fundamentally misconceived” cable industry claims that the so-called “must-carry” requirement violates their First Amendment right to free speech. Justice’s brief comes as the D.C. court is gearing for March 4 oral arguments on cable industry challenges to the must-carry/retransmission consent provisions of the cable bill. Under the new law, broadcasters are given the right to insist on mandatory carriage on the cable system, or they can try to negotiate cash payments from cablers under the retrans option. The Justice Dept. brief said broadcasters deserve to be carried on cable systems because cable “is now in a position to apply a chokehold on other First Amendment speakers in the broadcast industry, thereby impairing the right of viewers to hear from a broad array of diverse voices competing in the television marketplace.” Justice argued, “There is no question that Congress has a substantial interest in protecting this country’s broadcast industry.” The new Justice Dept. argument represents a 180-degree switch from the Bush administration Justice position on must-carry. Under Bush, Justice argued that must-carry provisions of the cable law violated the constitutional free-speech rights of cablers.
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