The U.S. Supreme Court on Monday upheld Congress’ mandate that cable television systems carry the programming of local broadcast stations.
In a 5-4 decision, the court rejected cable operators’ claims of a 1st Amendment violation in the arrangement, which Congress enacted in 1992 to try to preserve free programming for the declining number of non-cable households. Cable serves at least 60 percent of the nation’s households and is projected to continue to grow.
Although Congress targeted no definite number of broadcast stations to be preserved, the 1992 law requires that all cable operators with more than 12 channels set aside one-third of their channel capacity for local broadcasters. The cable systems, meanwhile, say they have been pinched for space as more programming is introduced.
“Significant evidence indicates the vast majority of cable operators have not been affected in a significant manner” by the regulation, Justice Anthony Kennedy said in the court’s opinion.
Cable operators, Kennedy said, have been able to satisfy their obligations 87 percent of the time by relying on previously unused channel capacity.
“This decision is good for local broadcasters, good for the country and a great opportunity to define anew the public interest service that broadcasters can deliver in a digital age,” said Chairman Reed Hundt of the Federal Communications Commission.
But Dan Brenner, a vice president of the National Cable Television Association, expressed disappointment that the court “had trumped the 1st Amendment rights of cable operators and programmers,” namely the cable operators’ perceived right to carry the programming they desire.
The effect on cable viewers will be slight, Brenner said. But subscribers who have lost channels or are looking for new programming, such as offered by C-Span and the History Channel, among others, “will have to wait longer because there is no space for them now.”
“More than 3.5 million viewers have lost access to all or part of the C-Span networks since the `must-carry’ rule became law in October 1992,” said Brian Lamb, C-Span chairman and chief executive officer.
“A total of 8 million viewers have lost access to all or part of the C-Span networks due to government regulatory roadblocks. . . . Today, the court has basically guaranteed that the information gap will widen for many more,” Lamb said.
Despite President Bush’s veto, the law went into effect in 1992 and was immediately challenged by the National Cable Television Association, Turner Broadcasting, Time Warner Entertainment and other cable companies as a violation of their free-speech rights.
The high court first reviewed the law in 1994 and sent it back to a trial court for further fact-finding.
A majority of the justices concluded Monday that Congress’ must-carry regulations were backed by sufficient evidence. “Judgments about how competing economic interests are to be reconciled in the complex and fast-changing field of television are for Congress to make,” Kennedy declared.
The dissent, in an opinion by Justice Sandra Day O’Connor, questioned Congress’ findings on several points.
“It is undisputed that the broadcast stations protected . . . are the marginal stations within a given market,” O’Connor wrote.
But, she added, the record “reveals that any broader threat to the broadcast system was entirely mythical.”
