Court Voids Rule Ordering Cable to Air Local Stations

A federal court Friday threw out, for the second time, a Federal Communications Commission rule that cable television systems must carry the programming of local stations that broadcast over the air.

The U.S. Court of Appeals for D.C. ruled that the FCC had given no evidence that, without the rule, cable operators would engage in widespread dumping of broadcasters’ programming. “Experience belies that assertion,” the ruling said.

Public broadcasting officials, however, said last March that after the ruling was first struck down in 1985, cable operators had dropped more than 160 public stations and moved 96 to less advantageous positions on the cable dial.

‘Important Safeguard’

“The must-carry rules are an important safeguard to assure that American people have access to the educational and cultural benefits of noncommercial television,” said Bruce Christensen, chairman of the Public Broadcasting Service. “The court has now placed in the hands of cable--a monopoly service--the ability to decide when and where those citizens who have supported public television can continue to enjoy its services via cable.”

In 1962, the FCC established the must-carry rule--saying cable systems must carry all local over-the-air stations--on the grounds it would protect open-air broadcasters from possible ruinous competition and further the goal of universally available programming.

In ensuing years, cable developed into a multibillion-dollar industry, producing extensive programming for its exclusive use. Cable operators sometimes found that carrying the on-air stations meant there was no room for programming they would prefer to offer, including pay channels like Home Box Office. They also complained that the ruling could force them to carry essentially duplicated channels; for instance, both NBC affiliates in neighboring cities.

In 1985, a federal court threw out the must-carry doctrine as a violation of First Amendment rights to free speech for the cable companies. The FCC enacted a revised form of the rule in 1986, this time softening the requirements.

Requirements Changed

Operators with 20 channels or fewer would not be required to carry any on-air channels, under the revised rule. Those with 21 to 26 would have to carry seven, and those with 27 or more would have to carry broadcasters’ signals on up to 25% of their channels.

The rule was to remain in effect for five years. The FCC said this would allow the public time to become used to a device costing about $7.50 that would allow them to shift instantly between cable and on-air broadcast signals.

The court, however, ruled Friday that the FCC’s assumption that the end of must-carry rules would seriously damage broadcast television was only a “fanciful threat” not based on hard evidence. It also questioned the FCC’s contention that American viewers would need five years to realize that they could get more channels by installing a low-cost switch.