Supreme victory for broadcasters in must-carry case


No news is definitely great news for broadcasters in the case of Cablevision v. FCC. The Supreme Court declined to hear Cablevision’s attack on broadcast must-carry obligations, leaving the 1992 rule intact.

Multiple-system operator Cablevision, backed by other MSOs and cable programming services, was arguing that the must-carry rules were written back when there was far less competition among MVPDs, and that the rule was an infringement on a cable operators’ ability to make free editorial choices to best serve its subscribers.

The Obama administration, which according to the Wall Street Journal was represented by Solicitor General and possible future Supreme Court Justice Elena Kagan, defended broadcasters. The government noted that cable carriage remained a critical component of economic viability for local broadcast stations.

The NAB hailed the decision. Said EVP Dennis Wharton, “Today is a great day for the millions of Americans who rely on the diverse line-up of programming supplied by free and local broadcasters. By denying the cable-backed petition for review, the Supreme Court validates NAB’s longstanding assertion that must-carry rules protect the public’s access to niche broadcast programming, including foreign language, religious and independent TV stations.”

RBR-TVBR observation: The underpinnings of must-carry remain firm – that is excellent news for broadcasters. What remains unresolved is the concept of multicast must-carry. Are broadcasters entitled to 6 MHz of system bandwidth to use as they wish, for either DTV or multiple program streams, or do they just get the one stream regardless of how it’s being used and how much bandwidth it’s consuming?

The multicast issue was tabled a few years ago after a relatively brief flurry of interest in Washington, in part because at the time broadcasters remained fairly clueless as to monetizing it – stations were starting to put up 24-hour local radar and weather reports, and if they were lucky breaking even on it.

Now, more and more broadcasters are starting to find uses for digital side-channels, using them to bring non-major and niche networks into markets that were short of full-power stations. Will broadcasters be content to allow cable operators decide whether these services deserve carriage or not, or will the 6 MHz multicast-must-carry issue be revisited at some point? Stay tuned.