The U.S. Supreme Court today will hear oral arguments on the cable TV industry’s constitutional challenge to a law requiring cablers to set aside a third of their channels for over-the-air broadcast stations.
The decision in the must-carry case is destined to become a landmark ruling in the history of U.S. communications law, with the high court deciding once and for all the First Amendment rights of cable operators.
A federal appeals court last year voted 2-1 to uphold must-carry on grounds that the law would serve to redress cable’s economic power over broadcasters. Must-carry, the court wrote, is needed “to restore competitive balance and assure a functional market in the distribution of video signals.”
Must-carry protection is of vital importance to independent broadcasters and public TV stations. Whereas top network affiliates are likely to continue receiving carriage on most cable systems even without must-carry, it’s the low-rated indies and pubcasters most at risk from being lopped off a cable system.
Cable operators assert the new law violates their free-speech rights by dictating the type of content they may carry. By insisting that cablers set aside a certain portion of channel capacity for broadcasters, the government is illegally squelching new program offerings from the cable industry, they claim.
The Clinton administration actively supports the broadcast industry argument, and has made the unusual step of assigning the case to Solicitor General Drew S. Days. Cable operators will be represented in oral arguments by D.C. lawyer H. Bartow Farr.