A federal appeals court has ruled that the FCC's differential treatment of low power TV stations when it comes to carriage rights on cable vs. satellite MVPD services is not unconstitutional, at least as argued by an LPTV seeking satellite carriage.
The court ruled that the FCC properly denied a request by WVUX-LD Fairmont (Clarksburg), West Virginia, that the FCC compel DBS carriage since low powers do not have must-carry rights on satellite.
Some low powers do qualify for cable must-carry and WVUX owner Michael Karr argued, among other things, that that differential treatment was a violation of the constitutional right to equal protection under the laws, which is guaranteed by the 14th Amendment.
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The court said that Karr had not demonstrated that "the differences in mandatory carriage obligations for cable and satellite TV providers under the Communications Act violate such rights," pointing out that his station "was treated the same as all other low power stations with respect to satellite carriage."
The court said it could not consider Karr's other constitutional arguments because they were not raised sufficiently in the FCC proceeding for the commission to have the opportunity to pass judgment on them.
Defending the decision in a brief back in September, the FCC, backed by the Justice Department, said that while some low powers are eligible for cable must-carry, the statute (Communications Act) is clear that is not the case with satellite even for similarly situated stations.
Cable must-carry applies to full power TV stations and certain “qualified” LPTVs. To qualify, a low power station must be within 35 miles of a cable headend and there must be "no full power television broadcast station licensed to any community within the county or other political subdivision … served by the cable system."
Satellite must-carry is a bit different. No satellite carrier has to carry local TV stations, but if they carry one in a given market then they must carry all of them, though only full power stations. WVUX-LD petitioned the FCC for a declaratory ruling and demand for carriage from Dish Network and DirecTV, which the FCC denied, citing the statute language that satellite must-carry does not include “low power TV stations,” and saying that language was “fatal” to the petition.
Karr argued that a footnote in a 2016 Government Accountability Office report on low power TV (“17 Federal law requires cable and satellite operators to carry the signal of qualified LPTV stations serving their markets”) was “persuasive authority.” But the FCC said the footnote was just wrong and that an inaccurate statement does not trump the clear language of the statute.
Karr also made a First Amendment argument--that the disparate treatment by cable and satellite was an unconstitutional abridgement of speech, one of the constitutional arguments the court said it was not addressing.
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But the FCC and Justice did in their brief last fall. They said the complaint does not allege that the differential treatment of cable and satellite in statute is an attempt to disfavor the speech of one over the other, while WVUX’s speech rights are not implicated since it is free to broadcast and has no inherent right to have its signals carried by satellite.
Karr can appeal the decision to the three-judge panel or to the full court (en banc). ■
