The Supreme Court said Tuesday that it will rule on whether the First Amendment forbids the government from determining what channels a cable company must carry.
At issue is the 1992 Cable TV Act, in which Congress generally required local cable operators to carry the signals of all the broadcast stations in their area. The law was passed in response to consumers’ anger over rising rates and spotty service.
Cable companies have filed an appeal, arguing that the law violates the freedom-of-the-press provisions of the First Amendment. The companies argue that they should be treated like newspapers, whose editors may choose the mix of “news, information and entertainment” to offer readers.
Just as government regulators cannot dictate what columns or features appear in a local newspaper, they may not dictate what channels local cable companies should carry, the lawyers contend.
But many local broadcasters say they would be financially damaged, even put out of business, if cable operators were free not to carry their signals.
“For some small, independent stations, (being carried on cable) is a matter of survival,” said James J. Popham, an attorney for the Assn. of Independent Television Stations.
If the high court were to strike down these “must carry” rules as unconstitutional, local cable operators would be permitted to drop some broadcast channels in favor of more programming that originates within the cable industry. Ultimately, the industry would be able to exert an ever-increasing control over TV broadcasting.
The Clinton Administration has urged that the law be upheld. In April, a panel of three judges upheld the new must-carry rules on a 2-1 vote.
In an usual twist in the cable industry’s position, the First Amendment argument could rebound and strike a blow at the monopoly the industry now enjoys.
Last month, a federal judge in Virginia ruled that telephone companies have a free-speech right to carry video signals over phone lines and thereby compete directly with cable TV operators. That decision, now under appeal, likely will turn on how the Supreme Court rules in the pending case (Turner Broadcasting vs. Federal Communications Commission, 93-44).
The cable case will be argued before the court in early January, one of seven cases granted a review Tuesday.
The other cases to be heard include challenges to a Montana law that imposes a $100-an-ounce tax on anyone who possesses marijuana and an Oregon law that sets steep taxes on garbage brought into the state. A federal appeals court struck down the Montana law as a “double jeopardy” punishment because the tax is added to a criminal punishment for the same offense. But the justices agreed to hear the state’s appeal (Montana vs. Kurth Ranch, 93-144).
In the Oregon case (Oregon Waste System vs. Department of Environmental Quality, 93-70), lower courts upheld the garbage tax but the high court has frowned on taxes that discriminate against items flowing in interstate commerce, including garbage.
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