Washington -- Cablevision Systems Corp. has asked the
Federal Communications Commission to reverse its decision to fine the cable operator over
violations of the agency's broadcast-station channel-positioning rules.
In an April 16 order, the FCC said Cablevision acted in a
"cavalier" manner by refusing to carry station WXTV on its FCC-assigned channel
41 on 39 cable systems in the New York market.
The FCC has yet to announce the size of the fine, which
could reach into the millions of dollars, a commission source has said.
Cablevision, in a petition filed May 17, told the FCC that
carriage of WXTV was part of a larger business negotiation with the station's parent
company, Univision Communications Inc., which included carriage of programming produced by
Univision's cable-programming arm, Galavisión.
"When the overall context of the discussions between
the parties is considered, it is clear that Cablevision has always acted in good faith and
within its rights, and that the institution of a forfeiture proceeding is
unwarranted," the MSO said.
The FCC gave Cablevision 45 days to carry WXTV on channel
41 on 21 systems and 180 days to do so on 17 systems. Cablevision said it is rapidly
complying, but it needs waivers for four systems that did not have 41-channel capacity.
In an action by the Cable Services Bureau, the FCC gave
Cablevision a break by saying that it did not have to carry WXTV on channel 41 on a
27,000-subscriber system in Hauppauge, N.Y., because the $1 million compliance cost was
extreme.
Cablevision said the basis for the FCC's Hauppauge
waiver supported its view that mandatory carriage of local TV stations on their assigned
channels was a violation of the Fifth Amendment's prohibition of the taking of
private property without just compensation.
"We think the bureau's decision not to require us
to move WXTV to channel 41 on a system where we would incur over $1 million in costs
reflects the legitimacy of our takings claim," Cablevision senior counsel for
regulatory and legal affairs David Ellen said in a prepared statement.
In its order, the FCC, citing a 1974 Supreme Court case,
said it did not have the authority to rule against WXTV on the basis that must-carry and
channel-positioning rules were unconstitutional.
In its filing, Cablevision said the Supreme Court held in
1994 that regulatory agencies like the FCC could rule on the constitutionality of
statutes. The MSO asked the commission "to issue a decision addressing the merits of
its taking claim."
In his statement, Ellen warned that Cablevision might go to
court on the Fifth Amendment issue, rather than waiting for the FCC.
Ellen said the MSO "believes that the must-carry rules
are an unconstitutional taking of cable operators' private property and cause more
harm than good for our customers. We have fully reserved our rights to press this view in
the future."
