A suit brought by basic cable services against an FCC ruling requiring that over-the-air broadcast television stations be made available to all subscribers to a cable system has been tossed out of court. The court said that cable programmers were unable to demonstrate harm.
Their basic argument held that granting special status to broadcast stations was a violation of their First Amendment rights, in that it made it more difficult for other programming services to gain access to a cable system’s channel lineup. The special status above and beyond the must-carry requirement long enshrined in the regs was the requirement that analog and digital versions of broadcast signals are made available for at least three years after the DTV transition date of 2/17/09, with further provision for a review of the necessity for an extension.
The court of Appeals for the District of Columbia Circuit was unconvinced of the cabler programmers’ arguments. If quoted an NAB brief on the case, saying they “failed to show how carriage of a handful of must-carry channels would have any impact on cable operators’ programming choices.”
NAB Executive Vice President Dennis Wharton commented, "This decision represents a big win for broadcasters. We’re pleased the court accepted the FCC’s sensible viewability rules and rejected speculative claims by C-SPAN and other cable programmers that any must carry requirements violate their First Amendment rights."
FCC Chairman Kevin J. Martin was also in a celebratory mood, saying "I am pleased that today’s decision will ensure that nearly 20 million households across the nation will continue to receive local broadcast channels over their analog cable service after the digital TV transition. This is a win for consumers. As a result of this victory, cable subscribers will continue to be able to watch their favorite programming on local broadcast channels. Today’s action preserves the Commission’s decision to protect consumers and prevents cable companies from either choosing to cut-off signals of must-carry broadcast stations after the digital conversion or requiring customers to purchase higher priced packages with set-top boxes to receive the same analog channels in digital.”
RBR/TVBR observation: When broadcasters win these media v. media regulatory battles, the lynchpin is their singular ability to provide immediate local news and information in times of crisis. Other media do not have the same kind of local focus. Or, as in the case of print, they lack immediacy. The flip side of this is that broadcasters must come through during times of crisis. The best do this routinely as a matter of pride and community service. But as competition continues its upward spiral, it becomes all the more important for all broadcasters pitch in to the best of their ability to make sure the NAB has effective ammunition to carry on these constant Washington battles.