Cable TV networks challenge new ‘dual must carry’ rule

Six cable networks have mounted a legal challenge to a new FCC rule that requires cable operators to carry local broadcast DTV channels as well as analog versions.
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Six national cable television programming companies filed an appeal in federal court of a new FCC rule that requires cable operators to offer an analog version of local broadcast DTV channels as well as the digital version –in effect two channels- for at least three years after the February 2009 DTV transition.

C-SPAN, Discovery Communications, The Weather Channel, TV One, A&E Television Networks and Scripps Networks say the new rule violates their First Amendment speech rights and gives local broadcast stations an unfair and illegal advantage over them in securing carriage on cable systems. They jointly filed the lawsuit in the U.S. Court of Appeals for the District of Columbia Circuit.

The companies claim the FCC rule not only ignores the public interest value of their programming, but it also violates their First Amendment right to “speak” to cable subscribers when they are forced off, or kept off cable systems because limited available channel space must be given to broadcasters to comply with the regulation.

They also argue that with this “dual must carry rule” the FCC exceeded its Congressional authority to regulate programmers, and that the rulemaking decision violates the Administrative Procedure Act.

Responding to the lawsuit, NAB Executive VP Dennis Wharton characterized the appeal as an attempt by cable interests “to block a successful digital television transition.”

“By reneging on the NCTA commitment to preserve cable carriage of local broadcast stations to all cable customers after February 2009, these programmers threaten to block consumer access to scores of foreign language and religious TV stations all over America,” Wharton said.

Arguments in the case are not expected until the fall.