Cablevision’s Must Carry Challenge, If Granted, Could Spell TV Band Reallocation Problems

Cablevision’s Supreme Court challenge to federal must-carry rules, if successful, could lead Congress to react and create a new set of rules to preserve some elements of that system, lawyers said Tuesday at a Progress & Freedom Foundation panel on the topic. If successful, the challenge could have implications for the FCC’s plans to reallocate part of the TV band for wireless broadband, they said.

It’s a “tough” case for the Supreme Court to decide to take because of the jurisdictional path it has taken to reach the high court, said Wilmer Hale broadcast attorney Jack Goodman, not part of the case. The court has shown an interest in taking First Amendment cases, such as the recent Citizens United v. FEC, he and others said. “We think the court has a keen interest in First Amendment issues,” said attorney Howard Symons, Mintz Levin attorney whose clients include Cablevision.

If the court takes the case and sides with Cablevision, Congress could react with legislation attempting to preserve elements of the must-carry rules, Symons said. “The response obviously would depend on the nature of the court’s decision,” in terms of what it struck it down and what avenues there would be for restoring it, he said.

Overturning the must-carry rules would have direct implications for the FCC’s plan to auction and reallocate part of the TV stations’ spectrum, Goodman said. Part of that plan envisions two stations sharing a single 6 MHz channel, he said. “The assumption behind the FCC’s plan is that cable would carry both signals and carry both in HD,” he said. “It’s really based on an assumption of cable carriage."

Even if the court decides not to take the case, the issue is ripe for review, said lawyer Matt Brill of Latham & Watkins, whose clients include cable operators and programmers. “Inevitably this issue is going to be reconsidered by the court, whether its through this vehicle or another,” he said. “Sooner or later there will be a successful effort to revisit these questions.”