Upholding the government's power to protect "the free flow of information and ideas," the Supreme Court said Monday that Congress can require cable television operators to carry the signals of broadcast stations in their areas.
The 5-4 ruling stops short of finally upholding part of a 1992 law that says cable operators must carry nearly all local over-the-air broadcasters. The case was sent back for a further district court hearing on whether all broadcasters actually need this protection.
But the high court's 45-page opinion marks a substantial victory for broadcasters, consumers and the Federal Communications Commission. It makes clear that cable television can be regulated, so long as the government does not seek to dictate the content of its programming. It also firmly rejects the cable industry's view that local cable operators, like newspaper publishers, are entirely protected from regulation thanks to the Constitution's guarantee of free speech and a free press.
"The First Amendment's command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of the critical pathway of communication, the free flow of information and ideas," said Justice Anthony M. Kennedy for the court.
"Our review of the (1992) act persuades us that Congress' overriding objective in enacting must-carry (rules) was not to favor programming of a particular subject matter, viewpoint or format, but rather to preserve access to free television for the 40% of Americans without cable," he said. Lawmakers feared that small, over-the-air broadcasters could be driven out of business if they were dropped by cable systems.
The ruling in the case (Turner Broadcasting System vs. the Federal Communications Commission, 93-44) is the high court's first extended pronouncement on cable television and the First Amendment. It reflects the extraordinary change in the TV industry over the last 30 years.
Three decades ago, cable television was a fledging industry that sold itself to viewers on the promise that it would offer them a clearer picture on their screens. Television itself was dominated by three networks: CBS, NBC and ABC.
Now, cable has become a power and in some ways has supplanted the three networks as the dominant force in news and entertainment. It not only delivers TV signals into 60% of American households, but it also produces its own programming. As both the high court and Congress noted, cable companies can exert a stranglehold over television broadcasters because most of them now reach households via cable.
In the 1992 law, Congress reacted to a growing volume of consumer complaints about rising rates and spotty service from cable companies. The Federal Communications Commission was given new authority to regulate the rates charged to customers and it recently ordered many cable firms to roll back their charges.
Lawyers for the cable industry have contested those regulations as well and that case had been put on hold in a lower court pending the outcome in the Supreme Court of the challenge to the must-carry rules. Monday's decision suggests that the rate regulations will be upheld, at least against challenges that they are unconstitutional.
The case decided Monday grew out of the separate concern that cable operators might try to kill off local broadcast stations that compete with them for advertising dollars. In an instant, these over-the-air stations could lose a majority of their viewers if a cable company dropped their signals. Particularly vulnerable are smaller, independent stations.
Without the must-carry rules, a cable operator could "silence the voice of competing speakers with a mere flick of the switch," Kennedy wrote. Even in cities where one newspaper enjoys a monopoly, the paper "does not possess the power to obstruct readers' access to other competing publications," he added.
Kennedy's opinion puts cable television somewhere between traditional broadcasting and newspapers in the hierarchy of First Amendment rights. Broadcasters have been regulated for decades on grounds that they are permitted to use the scarce television spectrum to send their signals. Even the content of traditional TV programming can be regulated--for example, to protect children.
Newspapers sit at the other extreme. The court has struck down virtually all attempts to regulate papers, including a 1974 ruling that said Florida lawmakers cannot force newspapers to offer a right-of-reply to candidates who were castigated in the news or editorial columns.
Cable TV is entitled to something in between the strict free-speech protection afforded newspapers and the lax standard applied to the broadcast industry, Kennedy said. In perhaps his most significant conclusion, he said the must-carry rules are "content-neutral" regulations. As such, they do not violate the First Amendment, he concluded.
Typically, the justices strike down laws or regulations that regulate a message or the content of a publication. For example, laws against flag burning were struck down because they were said to punish a message of contempt for the United States.
But other laws restricting free speech have been upheld if they do not favor one message over another. For example, the court has upheld a 100-foot buffer zone around polling places because all candidates and their partisans are equally forbidden from campaigning there.
Kennedy's opinion upholding the regulations as content neutral was joined by Chief Justice William H. Rehnquist and Justices Harry A. Blackmun, John Paul Stevens and David H. Souter. They agreed to send the case back to a three-judge panel to gather more information on whether all broadcasters are "in genuine jeopardy" and whether the regulations go no further than necessary.
In dissent, Justice Sandra Day O'Connor said that the rules should be struck down because they tell cable companies what they must say.
The National Cable Television Assn. said it was disappointed that "cable networks will continue to be second-class citizens."
The National Assn. of Broadcasters said it found "much reason for optimism" in the court's opinion. "We appear to be batting 2 for 2, with one major portion yet to be decided," said NAB President Edward O. Fritts.
Lawyers for the Media Access Project, a public interest group, applauded the decision as a victory for consumers. "We're particularly pleased that the justices recognize the importance of preserving free, over-the-air TV for the 40% of Americans who can't afford, or choose not to buy, cable," said Andrew Jay Schwartzman, the group's executive director.
In a related development, the court in a Los Angeles case let stand a ruling barring cities from absolutely barring a second cable operator from competing in the same area as an established firm. Without comment, the justices refused to hear an appeal in the case (Los Angeles vs. Preferred Communications, 93-1759).
* RELIGION RULING: A special school district for a religious sect is voided. A14
* CONSUMER IMPACT: What the cable TV decision means for viewers. D5