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Networks Lose Dual-Carriage Challenge

10/31/2008 8:00 PM Eastern

A federal appeals court ruled last Friday (Oct. 31) that a group of cable networks, including C-SPAN, couldn’t challenge the Federal Communications Commission’s decision to force cable operators to carry certain TV stations.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled in a case on FCC rules that require cable carriage of so-called must-carry TV stations in both analog and digital format for three years.

Without addressing the merits of the rules, the court held that the FCC’s regulations applied to cable operators but not to programmers. It said the cable networks failed to demonstrate that government-mandated TV station occupation of cable-system capacity automatically created an injury to cable networks denied the same access guarantees.

“While [the cable networks] ask the court to assume that the [FCC rules] will burden their speech, the causal connection between [the rules] and their claimed injury is tenuous at best,” the court said in a 13-page opinion released just 46 days after oral arguments.

The unanimous ruling was handed down by Judges David S. Tatel, Brett M. Kavanaugh, and Judith W. Rogers in an opinion written by Rogers.

“Obviously, we are disappointed that our effort to challenge the must-carry rules was thwarted by a procedural matter,” C-SPAN corporate vice president and general counsel Bruce Collins said. “The court’s decision said nothing about what are still-valid First Amendment claims.”

C-SPAN filed the case along with Discovery Communications, TV One, A&E TV Networks, The Weather Channel and Scripps Networks.

Cable operators didn’t participate in the case. The National Cable & Telecommunications Association declined to comment.

The FCC rules compel cable systems to transmit TV stations that demand carriage in both analog and digital if their systems have not switched to all-digital transmission. Since so few cable systems have, the FCC effectively imposed a national dual carriage requirement.

In fact, triple carriage was necessary when the must-carry station transmitted high-definition pictures.

Under pressure from Congress and the cable industry, FCC chairman Kevin Martin agreed to scale back the rules to help small cable systems. Now, hybrid cable systems with 552 MHz of capacity or less don’t need to transmit must-carry stations in digital at all until 2012 at the earliest.

“The [FCC] has since narrowed the scope of the [rules],” the court noted.

Martin issued a statement applauding the court ruling. In 2005, before becoming chairman, Martin voted against the imposition of dual-carriage. But he changed his mind two years later, reclassifying the issue from one about dual carriage to one about “viewability.”

“This is a win for consumers. As a result of this victory, cable subscribers will continue to be able to watch their favorite programming on local broadcast channels,” Martin said.

As the FCC was considering its policy options, NCTA said the rule should require carriage of must-carry signals in digital, but not in analog, because analog cable homes could gain access to those broadcast signals simply by leasing a digital set-top box or purchasing a digital cable-ready TV set.

NCTA stayed out of the programmers’ lawsuit because the trade group promised Congress its MSO members would voluntarily comply with dual must-carry for three years to facilitate a seamless transition to digital by local TV stations mandated on Feb. 17, 2009.

Paul Gallant, senior vice president of telecommunications and media at the Stanford Group, said the court’s ruling “validates the FCC’s effort to press cable to carry both analog digital signals after February. But cable has already committed to carrying these signals, so today’s ruling isn’t much of a hit for them.”

The court’s opinion cited a Multichannel News article quoting NCTA president Kyle McSlarrow as saying the dual-carriage promise would not go away even if the programmers defeated the FCC’s rules in court. The court cited the article to buttress the point that the programmers wouldn’t necessarily obtain in the market the relief they were seeking in court.

“The [cable programmers] theory of redressability is exceedingly vague. Cable operators have stated that they will ensure viewability regardless of our decision here,” the court said.

September