The Cubic Zirconia Court
Hazlett, Thomas W., Reason
"Must carry" cable rules don't sparkle
Twice in the 1980s, federal appeals courts threw out must carry rules crafted by the Federal Communications Commission. These regulations forced cable TV systems to give channel space to every local broadcast (over-the-air) television station. The courts found this infringement of the editorial discretion of "electronic publishers" a violation of the First Amendment's directive that "Congress shall make no law...abridging freedom of speech, or of the press."
That's when Congress got involved. Apparently encouraged by the tidy unconstitutionality of the twice-rejected rules, the House and Senate overrode George Bush's veto to enact the 1992 Cable Act, a measure featuring a statutory version of the old FCC rules. Industry wizards widely theorized that the law would again be overturned on constitutional grounds. But in a 5-4 decision, the Supreme Court has upheld new "must carry" rules - and delivered a stunning blow to free speech in these United States.
The premise of the decision is that cable television systems possess monopoly power in the local distribution of video programming. Hence, Congress serves the interests of "free speech" by compromising rights (including the right to select the networks featured on any one cable system) to enhance the speech of others - local broadcasters.
These TV stations, licensed by the FCC, are sprinkled with the fairy dust of "public interest, convenience, and necessity." As defined by Washington, they deliver the information services vital to the health of American Democracy.
In reality, "must carry" works like this: In the vast majority of cases, cable companies are happy to give carriage to all the locally available broadcast signals - it's cheap (essentially free to cable operators), popular programming. But in some markets (say, the San Francisco Bay Area), adjacent communities have been assigned TV stations (say, Oakland, San Jose, Petaluma, and San Francisco), and "must carry" dictates that multiple ABC or PBS affiliates elbow into the cable menu. These marginal stations are neither popular, as their programs are entirely duplicative, nor inexpensive, as they chew up megahertz which would otherwise transport The Learning Channel or C-SPAN2.
In the March 1996 issue of REASON, C-SPAN CEO Brian Lamb complained bitterly that the 1992 act had effectively eliminated or reduced carriage of his two networks for at least 7 million cable TV subscribers. This effect, said the Court, was but a small price to pay for ensuring the "governmental purpose of the highest order in ensuring public access to a multiplicity of information sources." Earth to Supremes: The high-quality, information-rich cable channels knocked out in millions of U.S. households are making room for low-valued, little-watched broadcast outlets featuring Mannix reruns and, most sensationally, home shopping! …