Company Town : NEWS ANALYSIS : For Now, TV Viewers Are Spared Another Juggling of the Channels : Cable: A final high court ruling on the ‘must-carry’ statute could be years away.

The Supreme Court’s decision to send back to a federal appeals court a controversial 1992 law that required cable TV systems to carry local broadcast stations means that viewers will be spared--at least for the time being--another confusing spin of the dial.

Had the Supreme Court chosen to overturn the “must-carry” regulations adopted by Congress as part of the 1992 Cable Act, viewers could again have seen the channel positions on their local cable TV systems juggled to make room for new cable networks.

TV viewers have been been confounded by repeated channel changes over the past year as local cable systems rejiggered their lineups to comply with rules requiring cable operators to carry all local broadcast channels, including religious and home shopping stations.

In asking the Supreme Court to overturn those rules, the cable industry argued that it is not being afforded the same First Amendment protection enjoyed by newspapers. But despite the industry’s lofty rhetoric about constitutional violations, the real issue is who will have access to the country’s 57 million cable TV homes.

The 1992 must-carry law required cable operators to devote as much as one-third of their channels to local broadcast stations. After being upheld by an appeals court, it was appealed to the Supreme Court by the National Cable Television Assn.; Turner Broadcasting System Inc., which owns CNN, TNT and the WTBS superstation; Time Warner Inc.; the privately held Daniels Cablevision Inc., and the Discovery Channel.

The cable industry would like to drop some channels, especially religious, home shopping and independent stations, to make room for new “niche” cable networks, many of which are owned by cable operators.

When Congress ordered the cable TV industry to roll back its rates two years ago, it also set new terms about how the often acrimonious cable TV and broadcasting industries would do business with each other. Those new rules, cable operators claimed, favored broadcasters.

Under those new rules, TV stations could elect to negotiate to be carried on local cable systems for a fee or other consideration, an option known as retransmission consent. They could also opt for must-carry status, meaning cable operators are required to carry them but don’t have to pay to do so. Stations had to pick one or the other.

Nearly all network affiliates and major independent stations, dealing from a position of strength, opted for retransmission consent, while the weaker independents, home shopping, religious and foreign language stations chose must-carry.

It is the latter group that would suffer most if must-carry were struck down, because the case before the Supreme Court did not address the retransmission consent issue.

“Both sides will claim victory, but overwhelmingly the language is better for the public and broadcasters,” said Gigi Sohn, deputy director of the Washington-based public interest group Media Access Project, which sided with the broadcasters in the must-carry issue.

The cable industry has been trying to challenge the must-carry provisions for more than a decade. In the 1980s the courts struck down the rule, but it resurfaced in the 1992 Cable Act due to heavy lobbying from broadcasters.

While there were some instances of cable systems dropping TV stations--usually low-rated independents--fears of widescale disruption were exaggerated, and most cable operators found that customers expected to see local channels as part of basic service.

Still, the cable TV industry saw in Monday’s Supreme Court decision reason to hope that eventually the must-carry rules will be found unconstitutional.

“It’s important to note that the decision be seen as a 5-4 decision and that there are four judges on the Supreme Court who were willing to overturn the statue,” said Jeffrey Sinsheimer, director of regulatory affairs for the California Cable TV Assn. “The language in the majority’s opinion shows skepticism as to whether the statute is constitutional.”

One thing the cable TV and broadcasting industries do agree upon is that the must-carry statute will eventually make it back to the Supreme Court for a final decision. While there is no timetable, experts say that could still be years away.

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