Justice Kennedy’s TV Legacy: ‘Must Carry’ Rules


Associate Justice of the U.S. Supreme Court Anthony Kennedy on Wednesday announced his retirement. At age 81, Kennedy’s stepping down from the bench could have major long-term ramifications on the ideological composition of the nation’s highest court.

For TV broadcasters, Kennedy will be remembered for something that is discussed on a daily basis by MVPDs and owners of UHF and VHF stations.

As the American Cable Association notes, Kennedy penned the 5-4 decision in 1997 that gave TV station owners mandatory access to cable TV systems under a regulatory regime called “must carry.”

Oral arguments in Turner Broadcasting System v. FCC began in Oct. 7, 1996. It was decided on March 31, 1997 by the Rehnquist Court.

The key question addressed in the case: Is the 1992 “must carry” law an unconstitutional intrusion on cable operators’ editorial autonomy, a form of Government-compelled speech that violates the First Amendment?

The court’s 5-4 decision was “no.” The Court held that Congress “has an independent interest in preserving a multiplicity of broadcasters.”

The outcome supported Congress’s right to judge what approach would best insure a competitive communications marketplace.