Cable TV Loses Bid to Dump Local Channels

Ending a five-year legal battle over the future of local television, the Supreme Court ruled Monday that cable TV operators can be forced to carry the signals of all TV broadcasters in their area.

The 5-4 ruling rejects the cable industry’s claim that its local owners had a free-press right, rather like newspaper publishers, to decide which stations they would carry.

Instead, the court majority stressed that the 1st Amendment also protects the public’s access to a “rich mix of over-the-air programming.”

The ruling probably spares the life of many small, independent stations, educational channels and foreign language broadcasters that were in danger of being dropped from the cable lineup and replaced by another “pay-per-view” channel.

That loss would cost them most of their viewers and probably drive them out of business.

Casting the deciding vote, Justice Stephen G. Breyer said he was swayed by the probable effect on the nearly 40% of American households who do not buy cable TV. If the “must carry” law were struck down and those stations went off the air, he said, these non-cable households would face a steadily shrinking number of free stations.

“I believe that this purpose--to assure the over-the-air public access to a multiplicity of information sources--provides sufficient basis for rejecting the [cable industry’s] 1st Amendment claim,” said Breyer, the Clinton administration appointee who joined a court that had been split 4-4 on the issue.

A recent survey found that 61% of households in the Los Angeles metropolitan area subscribe to cable television.

Most cable networks in California have 50 to 60 channels, and the must-carry rule obliges them to devote 12 to 15 slots to local broadcasters, said Peggy Keegan, a vice president of the California Cable Television Assn. in Oakland.

The ruling marked a major victory for the broadcasters over the increasingly powerful cable industry.

“We’re elated the Supreme Court has recognized the historic importance of preserving free over-the-air television for all Americans,” said Edward O. Fritts, president of the National Assn. of Broadcasters.

National Cable Television Assn. president Decker Anstrom said he was “obviously disappointed and frankly a little surprised. We continue to believe that cable systems and cable networks should have full 1st Amendment rights--and hope that the courts will someday reach that conclusion.”

Brian Lamb, founder of the C-SPAN network, said he too was disappointed. His public affairs network was created by the cable industry, but it has been dropped by some local cable operators who say they do not have enough channel capacity, blaming the rule requiring them to carry all local broadcasters.

Just 20 years ago, the fledgling cable TV industry was seeking to establish itself with the help of government. Encouraged by Congress, most municipalities gave cable firms the right to string wires throughout their communities. In turn, the cable firms promised to offer clear reception and an increased array of local programming, including channels devoted to carrying school news and local government affairs.

Once established, many of the local cable companies were sold to national firms. By 1994, the 10 largest cable companies controlled 63% of the nation’s cable systems, the court noted.

These large cable firms also began to provide their own national programming, from the Cable News Network to the Cartoon Channel and scores of others. Not surprisingly, these cable companies preferred to have more of this programming on their local lineups, rather than the many over-the-air broadcasters who competed with them for advertising dollars.

By the late 1980s, the cable industry, although a creation of local government, was boldly asserting that it was off-limits to government regulation, thanks to the 1st Amendment.

That argument fell one vote short in the Supreme Court on Monday.

Justices Sandra Day O’Connor, Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg voted to strike down the 1992 law.

However, the five-member majority in Turner Broadcasting vs. Federal Communications Commission, 95-992, said Congress had reason to impose the “must carry” rule on the cable industry.

These days, cable operators enjoy a “local monopoly” that allows them to control the fate of some of their over-the-air competitors, said Justice Anthony M. Kennedy for the court. “Broadcast television has been an essential part of the national discourse on subjects across the whole broad spectrum of speech, thought and expression,” he said, and Congress had ample authority to “preserve a multiplicity of broadcasters” through the must-carry rule.

More than three years ago, the court heard arguments in the cable TV case. A 5-4 majority, including Justice Harry Blackmun, said the “must carry” rule was a “content-neutral” measure that was not designed to suppress free speech. But rather than uphold the law, the justices sent it back to a lower court to gather more evidence on its impact.

This initial ruling coincided with Blackmun’s retirement and his eventual replacement by Breyer. When the case came back before the high court in October, it was assumed--correctly--that the newest justice held the deciding vote.

A former Senate aide and a U.S. appeals court judge, Breyer has lived up to his billing as a justice who is less inclined to follow ideology than to weigh the facts of each case.

In this case, Breyer said he was convinced that the cable companies have developed a “kind of bottleneck that controls the range of viewer choice.”

“Without this statute, cable systems would likely carry significantly fewer over-the-air stations, station revenues would therefore decline and the quality of over-the-air programming on such stations would almost inevitably decline,” he concluded.

Meanwhile, in other actions, the court:

* Reinstated a Montana law that requires unmarried girls to notify a parent or get a judge’s approval before undergoing an abortion (Lambert vs. Wicklund, 96-858). A federal judge had blocked enforcement of the 1995 notification law because it did not include a waiver for an abortion that was deemed to be in a girl’s “best interest,” but the court overturned that decision in a unanimous, unsigned opinion.

* Let stand a ruling that requires commercial printers of college “course packs” to pay copyright fees (Michigan Document Services vs. Princeton University Press, 96-1219). Most copiers apparently pay such fees, but an Ann Arbor, Mich., printer argued that he was protected by the Copyright Act of 1976 and its exemption for teachers and “multiple copies for classroom use.” Disagreeing, a federal appeals court said this exemption applies to professors and their students who make copies on their own, but not to commercial printers.

* POTENTIAL SETBACK: The ruling could hurt cable programmers and operators. D1