Opinion: Must cable TV carry every broadcast channel?
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The Supreme Court declined Monday to revisit a nearly 20-year-old requirement that cable TV systems carry all local broadcast stations. The court had already upheld the requirement twice, in 1994 and 1997, but Cablevision Systems challenged it again in an effort to avoid carrying WRNN, a station in Kingston, N.Y., that broadcasts mainly infomercials, shopping programs and syndicated shows. The Supreme Court was probably right to punt on this one, but it’s past time for Congress to pare back the must-carry mandate
The cable company argued that access to a cable operator’s lineup was no longer a matter of life or death for local broadcasters, as Congress feared when it enacted the must-carry requirement in 1992. That’s because cable isn’t a gatekeeper to local audiences anymore -- stations can also strike distribution deals with telephone and satellite companies’ pay-TV services, as well as broadcasting their programs online. But the U.S. 2nd Circuit Court of Appeals ruled against Cablevision last year, and the Supreme Court decided Monday not to take up the case.
Predictably, the National Assn. of Broadcasters welcomed the Supreme Court’s (in)action. Said NAB Executive Vice President Dennis Wharton:
‘Today is a great day for the millions of Americans who rely on the diverse lineup of programming supplied by free and local broadcasters. By denying the cable-backed petition for review, the Supreme Court validates NAB’s long-standing assertion that must-carry rules protect the public’s access to niche broadcast programming, including foreign language, religious and independent TV stations.’
If only the rules were so beneficial. The main effect is to all but guarantee broadcasters a prime spot in the lineup of every nearby cable system, regardless of whether their programming is valuable, unique or watched by anyone. Not that Congress should be picking winners and losers on this front; instead, lawmakers should let the market do so. They can do that by eliminating the must-carry requirement and sticking with ‘retransmission consent,’ an existing alternative to must-carry that requires cable operators to negotiate with broadcasters for the right to retransmit their programs.
The retransmission consent approach is a two-way street. If broadcasters’ programs are unique and valuable, cable has to pay for them. But if they’re not, a cable operator doesn’t have to make space for them in its lineup. Niche programmers wouldn’t command the kind of fees that a CBS station might, but it stands to reason that cable operators wouldn’t shun any broadcaster that appealed to distinct segments of the community. With ample capacity in most cities, cable operators are likely to carry a diverse lineup in an effort to attract as broad an audience as possible.
-- Jon Healey
