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Cable Networks Sue FCC Over Dual Carriage

Washington — Major cable TV programmers, including C-SPAN, Discovery Communications and The Weather Channel, are suing to block the Federal Communications Commission from forcing cable systems to carry some local TV stations in analog and digital format for three years, beginning in early 2009.

The cable networks are objecting to the FCC’s so-called dual must-carry rules, under which commercial TV stations that demand cable carriage are entitled to distribution in an analog and digital. The tiny number of cable systems that have gone all-digital, meaning they have reclaimed their analog bandwidth, are exempt from the dual carriage requirement adopted by the FCC in September 2008.

TV One, A&E Television Networks and Scripps Networks also sued in a joint appeal filed with the U.S. Court of Appeals for the D.C. Circuit. No cable operators are parties.

TV stations won must-carry rights from Congress in 1992 and the Supreme Court sustained the law five years later in a 5-4 ruling. But the legal issues and market conditions then were much different from now.

Multichannel News is a sister publication to TWICE.

“The Supreme Court has made it very clear that cable programmers have First Amendment rights,” said C-SPAN chairman Brian Lamb, “so it is frustrating to us and the other companies involved in this appeal, that our audiences risk losing our programming and that we have to go to court just to get a fair shake from the FCC.”

The programmers claim that the FCC’s rules violate the First Amendment, with the result being that cable networks will be pushed off cable systems to accommodate TV stations with unnecessary duplicative carriage rights.

“The companies claim the FCC’s favoritism to broadcasters not only ignores the public interest value of their programming, but it also violates their First Amendment right to ‘speak’ to cable subscribers when they are forced off, or kept off cable systems because the limited available channel space must be given to broadcasters under the dual must-carry rule,” the companies said in a joint statement released on C-SPAN stationery.

The window to sue the FCC opened on Feb. 1 when the FCC’s rules were printed in the Federal Register — 143 days after adoption by the agency.

The National Cable & Telecommunications Association isn’t planning to launch a legal challenge. Instead, it will lobby the FCC to issue a broad exemption for small systems, a move FCC chairman Kevin Martin has opposed because he believes small operators’ capacity crunch is being exaggerated.

“NCTA doesn’t intend to file an appeal of the order; however, we urge the commission to quickly approve a blanket exemption for small cable systems that do not have the capacity for dual carriage,” Brian Dietz, NCTA’s vice president of communications, said in a statement last Friday.

The dual-carriage mandate begins on Feb. 18 2009. Oral arguments in the programmers’ case are not expected to be heard until autumn. Since courts take a few months to issue rulings, a ruling in this case might not come out until after cable operators have begun to comply.

FCC chairman Kevin Martin rejects calling the rules “dual carriage.” He calls them “viewability” rules, arguing that the exemption for all-digital systems proves that no dual-carriage requirement is being imposed.

Martin’s analysis underwent a market test of sorts a few weeks ago when Comcast tried to give every analog-only customer in Michigan a free digital set-top box for one year to ensure that public, educational and governmental channels would be viewable on analog TV sets.

Local governments rebelled, complained to House Energy and Commerce Committee chairman John Dingell (D-Mich.) and finally got a federal judge to enjoin Comcast from proceeding.