Networks sue org on dual carriage rule

Six national cable television programming companies have jointly sued the Federal Communications Commission, claiming that the agency’s so-called dual carriage requirement is a dual foul.

C-Span, Discovery Communications, the Weather Channel, TV One, A&E Television Networks and Scripps Networks allege that the requirement constitutes both a First Amendment violation and an unfair advantage for broadcasters. The cablers are asking the D.C. Circuit Court of Appeals to toss the requirement, which forces cable operators to offer an analog version of a broadcaster’s channel as well as a digital one for at least three years following the transition to all-digital in early 2009.

The FCC adopted the rule last fall as a means of ensuring that cable subscribers with analog TV sets would continue to receive viewable signals for at least a minimum period of time after the digital transition.

But the cablers claimed that “the FCC’s favoritism to broadcasters not only ignores the public interest value of their programming, but it also violates their First Amendment right to ‘speak’ to cable subscribers when they are forced off, or kept off cable systems because the limited available channel space must be given to broadcasters under the dual must-carry rule,” according to a joint statement.

“The Supreme Court has made it very clear that cable programmers have First Amendment rights,” said C-Span chairman Brian Lamb in a statement. “So it is frustrating to us and the other companies involved in this appeal that our audiences risk losing our programming and that we have to go to court just to get a fair shake from the FCC.”

FCC spokeswoman Mary Diamond responded, “The 1992 Cable Act is very clear. Cable operators must ensure that all local broadcast stations carried pursuant to this act are ‘viewable’ by all cable subscribers. The commission’s order made sure that the over 40 million cable subscribers with analog cable will continue to receive the same broadcast stations after the transition.”

The broadcaster lobby blasted the lawsuit, courtesy of NAB exec veep Dennis Wharton, who accused the cable companies of breaching a promise made last year by cable lobby the National Cable & Telecommunications Assn. to observe dual carriage.

“Today’s lawsuit by a handful of self-serving pay TV programmers represents yet another attempt by cable interests to block a successful digital television transition,” Wharton said in a statement. “By reneging on the NCTA commitment to preserve cable carriage of local broadcast stations to all cable customers after February 2009, these programmers threaten to block consumer access to scores of foreign language and religious TV stations all over America.”

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