The Supreme Court Monday (May 3) punted on a decision on
whether to hear Cablevision's challenge to the must-carry rules. That is
according to the list of appeals that were denied Monday, which did not feature
Cablevision vs. The FCC. The case had been up for consideration at the
Justice's Friday private conference, after which a decision to take the case or
deny it generally, but not always, comes out the following Monday.
One veteran attorney said the reason could be anything from
one of the justices asking for more time to check conflicts of interest,
to a substantive disagreement over taking the case to logistical issues.
"You will never know," he added.
Cablevision in January asked the High Court to review the
constitutionality of the must-carry rules, which require cable operators to
carry local broadcast stations. The challenge was backed by most of the other
major operators (represented by the National Cable & Telecommunications
Association).
Cablevision had pointed out in its appeal that even more
than a decade ago, the Supreme Court's decisions -- two of them -- upholding
must-carry was razor thin. The cable operator says that in the intervening
years "the factual underpinnings of those decisions have evaporated."
What was once a cable monopoly,
Cablevision concedes to the court, "has been replaced by vibrant
competition."
The rationale for the Turner decisions has been gutted, the
company says, while the FCC continues to subsume cable's editorial judgment.
The commission has even expanded the rules to cover conduct that would not even
be covered by the Turner rationale even if it were still relevant, the company
says.
Specifically, Cablevision wants the court to hear the cable
company's appeal of a Second Circuit decision upholding the FCC's must-carry
mandate for station WRNN.
A three-judge panel of the Second Circuit back in June 2009
rejected Cablevision's challenge to an FCC order requiring carriage of WRNN New
York in some Long Island communities under the
market-modification provisions of must-carry. The full court in October
rejected Cablevision's petition for a re-hearing. In the process, that court
took an expansive view of the benefits of the must-carry rule, citing the
Supreme Court's Turner decision and concluding that it did not mean to limit
must-carry to the minimum of replicating a DMA.
In its Supreme Court filing Jan. 27, Cablevision asked the
court why a cable operator should be compelled to carry programming of a
broadcast station in an area in which the station lacks an over-the air
audience.
In asking the court not to hear the appeal, the FCC and
Justice Department said that even if "robust competition" should be a
factor in some individual must-carry decisions, Cablevision had not established
that there was robust competition in the WRNN case. It said that the Cablevision
claim that "sweeping industry changes" had invalidated the Turner
decisions was not properly before the court, and that even if it were, the case
"would present a poor vehicle for resolving it" since the lower court
did not rule on any sweeping First Amendment.
"The record in this case does not contain the broad range of data that
would be needed to evaluate the constitutionality of the must-carry statute
under present circumstances," the FCC and Justice told the court in a
brief opposing cert.
