D.C. Memo: NCTA Targets Broadcast Must Carry Rules for Deletion

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Must Carry: Forcing cable operators to carry some TV stations – a law twice upheld by the Supreme Court – is so hopeless outdated in the Internet age that it couldn’t possibly survive a court battle today, NCTA – The Internet & Television Association said April 10 in the FCC’s “Delete, Delete, Delete” docket. “The government’s interest in preserving local broadcast television can be achieved in a plethora of other, less burdensome ways, and no government intervention is necessary to ensure that each household has access to a broad diversity of video programming,” NCTA said. Commercial TV stations may elect mandatory carriage in lieu of retransmission consent; public TV can only rely on must carry. Must carry is statutory, contained in the 1992 Cable Act. Apparently recognizing that Congress would need to abolish must carry, NCTA urged the FCC to modify or eliminate rules that support the must carry regime, such as the basic tier requirement, which entitles must carry stations to be seen in all cable TV homes. It also cited as problematic rules that require subscriber purchase of the basic tier. Must carry wasn’t NCTA’s only target. It said public access (PEG) channels, leased access channels, and program access rules were problematic under the First Amendment, the Fifth Amendment (takings clause) or both. “These statutorily mandated obligations amount to compelled speech that can no longer pass constitutional muster in today’s marketplace,” NCTA said. “Any programmer seeking to use PEG or leased access capacity can simply disseminate that programming via the Internet, and to a far wider audience than is reached via the local cable operator.”

Here’s a rundown of other filings in the Delete, Delete, Delete docket: