Must-carry grilled by Supreme Court

U.S. Supreme Court justices weighed in skeptically Wednesday during oral arguments over the constitutionality of a law that forces cable operators to reserve as much as a third of their channels for local TV stations.

The case involves the broadcast industry’s treasured must-carry law, a provision included in the 1992 Cable Act that ensures cable’s carriage of most broadcast stations at the expense of burgeoning new cable networks.

Outcome of the closely watched case is likely to become a landmark ruling in communications law, with its First Amendment ramifications perhaps extending into other multimedia fields.

Broadcast industry backing of must-carry hinges on a belief that TV stations are at the economic mercy of cable operators without assured carriage on the cable system. That was the argument made by Clinton administration Solicitor General Drew Days III, who disputed cable attorney H. Bartow Farr’s claims that the must-carry law infringes upon the free speech rights of cable operators.

While conceding that most broadcast stations were carried prior to must-carry’s enactment, Days said Congress passed the law after “projecting down the road” that cable’s increasing economic might will lead to more TV stations being lopped off systems.

Countering Days’ reasoning with tough questioning were Justices Antonin Scalia, Ruth Bader Ginsburg, David Souter and Sandra Day O’Connor, who all seemed to suggest that the consequence of Congress’s action was to dictate the editorial content of cable programming. Scalia suggested that some over-the-air broadcasters might have been yanked off cable systems merely because “they were bad stations that people didn’t want to watch.”

Later, Scalia said the law apparently was passed because “Congress is worried about some broadcasters not being able to make it and having to go out of business.”

Ginsburg, who once wrote an opinion overturning FCC must-carry rules while serving as an appellate court judge, also noted that broadcasters cannot cite an “impressive record” of TV stations being dropped in favor of cable systems.

Farr, on behalf of the cable industry, repeatedly hammered home the claim that Congress was limiting cable’s First Amendment rights. Asked whether in fact the must-carry law doesn’t simply “make cable carry what they carry anyway,” Farr replied there is a “very real difference between a voluntary decision to utter speech and to be compelled to do it.”

Farr was on the defensive in an exchange with Ginsburg when she suggested that explosions in technology and the coming 500-channel world might “dilute your (cable’s) objections” to must-carry. Farr countered by claiming that cable operators will “need to make choices” editorially even in an abstract world of hundreds of channels.

Broadcast industry lawyers were privately disappointed with the outcome of the arguments, with one representative describing the day’s events as “grim.”

By contrast, cable representatives were delighted. National Cable Television Assn. prez Decker Anstrom noted the court “seemed to express skepticism about the rationale” for the law, which he called “badly tailored and … unconstitutional.”

Neither side was forecasting victory, however, due to the unpredictability of the high court. A decision is expected by July.

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