Current Status
November 21, 2008
C-SPAN'S FIRST AMENDMENT CLAIMS THWARTED BY COURT IN MUST CARRY CASE
On October 31, 2008 the U.S. Court of Appeals in Washington, DC ruled that C SPAN and other cable programming services did not have the right to complain in court about the FCC's so-called Dual Must Carry rule.
The effect of this ruling is that C SPAN and other cable programmers will have fewer opportunities to be carried on cable systems because already scarce spectrum, or "shelf space," on those systems will be given to local broadcasters.
In its ruling the court never addressed the cable programmers' First Amendment claims that their free speech rights were infringed by the FCC's preference for broadcasters over cable programmers. Instead, the court decided there was not enough evidence that C SPAN and the other programmers were likely to be harmed by FCC's rule to go forward with the lawsuit.
C-SPAN continues to believe that the Dual Must Carry rule is unfair, but nevertheless accepts the court's decision. We will continue to work to assure the broadest possible carriage by cable systems of all three of our public affairs networks regardless of the regulatory obstacles to that goal.
[Read the Court's Opinion]
September 22, 2008
C-SPAN GOES TO COURT OVER DUAL MUST CARRY RULE
READ THE TRANSCRIPT OF THE SEPTEMBER 15, 2008 ORAL ARGUMENT
On February 4, 2008 C-SPAN and other cable networks sued the FCC in federal court claiming the "dual must carry" rule violated their First Amendment rights and that the FCC exceeded its authority in making the rule. [Read Press Release].
Oral argument in the case was on September 15, 2008 before three judges of the U.S. Court of Appeals in Washington, DC.
The full transcript of that one-hour argument is available here. [Read Transcript]
C-SPAN's attorney (Bruce Sokler of the firm Mintz, Levin) led off the argument, then followed up at the end to rebut certain points made later by the FCC and the National Association of Broadcasters lawyers.
As with most oral arguments in cases like this, it is not wise to attempt to predict the judges' ruling based on their comments during the argument. This particular argument was very active in that all three judges had several questions for all the attorneys, including factual questions about digital technology.
It is not possible to say when the court would rule, nor whether the court would rule before February 18, 2009 when the "dual must carry" rule would become effective. Come back to this page for updates as the case continues.
July 8, 2008
C-SPAN GOES TO COURT OVER DUAL MUST CARRY RULE
CASE WILL BE HEARD SEPTEMBER 15, 2008
There had not been very much activity at the Federal Communications Commission regarding the "must carry" rule in nearly two years. Then, on September 11, 2007 the FCC approved a version of the "must carry" rule called "dual must carry". [Read FCC Order]. This version of the rule requires cable operators to carry both an analog and a digital version of each local broadcaster's signal starting February 18, 2009 when broadcasters are required to stop transmitting analog signals.
On February 4, 2008 C-SPAN and other cable networks sued the FCC in federal court claiming the "dual must carry" rule violated their First Amendment rights and that the FCC exceeded its authority in making the rule. [Read Press Release]. The lawsuit was filed soon after the FCC's formal Order containing the rule was published in the Federal Register on February 1, 2008. [Read Federal Register].
Our concern is that this "dual must carry" rule will force cable operators to use valuable cable system capacity to carry broadcasters' duplicative analog signals when that capacity could be used to carry the C-SPAN Networks and other cable programmers.
So far we have filed the lawsuit. [Read Filing]. Other parties have responded, including the FCC, which claimed, among other things, that C-SPAN and the programmers joining us did not have the legal right to sue at all. [Read FCC's response]. We believe we made short work of that argument. [Read C-SPAN's rebuttal].
Oral argument in the case is scheduled for September 15, 2008 in Washington, DC.
It is not possible to say when the court would rule, nor whether the court would rule before February 18, 2009 when the "dual must carry" rule would become effective. Come back to this page for updates as the case continues.
February 4, 2008
C-SPAN GOES TO COURT OVER DUAL MUST CARRY RULE
There had not been very much activity at the Federal Communications Commission regarding the "must carry" rule in nearly two years.
However, on September 11, 2007 the FCC approved a version of the "must carry" rule called "dual must carry". [Read FCC Order]. This version of the rule requires cable operators to carry both an analog and a digital version of each local broadcaster's signal starting February 18, 2009 when broadcasters are required to stop transmitting analog signals.
On February 4, 2008 C-SPAN and other cable networks sued the FCC in federal court claiming the "dual must carry" rule violated their First Amendment rights and that the FCC exceeded its authority in making the rule. [Read Press Release]. The lawsuit was filed soon after the FCC's formal Order containing the rule was published in the Federal Register on February 1, 2008. [Read Federal Register].
For now, we have only filed the lawsuit. [Read Filing]. The next step will be for the parties to file legal briefs with the court. That will probably not occur for a few months. An oral argument in the case, if there is one, would not take place until the Fall. It is not possible to say when the court would rule, nor whether the court would rule before February 18, 2009 when the "dual must carry" rule would become effective.
Come back to this page for updates as the case continues.
September 5, 2006
NO FCC ACTION SCHEDULED on MUST-CARRY RULE
In June of this year it appeared the Federal Communications Commission was about to take another vote on the so-called "multi-cast, must-carry" proposal. If approved, this proposal would force cable operators to give each broadcaster additional space on cable systems to deliver several broadcast signals instead of just one.
C-SPAN has been a consistent opponent of "multi-cast, must-carry" because we believe the government should not give preferential treatment to broadcast stations over cable programmers as both seek access to the limited channel capacity of cable systems. We believe that if the proposal becomes effective, the C-SPAN Networks will have fewer opportunities to expand the availability of our public service programming to cable television subscribers.
Despite our concerns in June that the FCC would reverse itself and approve a "multi-cast, must-carry" rule, it did not do so. At about the same time the Commission welcomed a fifth commissioner, Robert M. McDowell, whose positions on many communications issues, including must-carry issues, were unknown. In a press interview a few weeks after his swearing-in Commissioner McDowell said that he did not support a change in the multi-cast, must-carry regulatory regime because he did not believe the Commission had Congressional authority to make such a change.
The effect of Commissioner McDowell's statement, we believe, is that the FCC is not likely to make a change in the must-carry rule very soon. Most FCC observers now count only two of the five votes in the Commission as desiring any change in the rule. This means, as a practical matter, the rule will remain unchanged until there is a change in the membership of the Commission, and perhaps even beyond such a change.
C-SPAN will remain vigilant, however. The effect of a "multi-cast, must-carry" rule would have too harmful an effect on our ability to fulfill our public service mission for us to relax our attention. We will keep you up to date on the status of the must carry issue in Congress and at the FCC on this page.
June 2, 2006
FCC MAY RE-VOTE on MUST-CARRY RULE in JUNE
As of today the Federal Communications Commission is preparing to take another vote on the so-called "multi-cast, must-carry" proposal. If approved, this proposal would force cable operators to give broadcasters additional space on cable systems to deliver several broadcast signals instead of just one.
The FCC's move is significant because it firmly rejected the "multi-cast, must-carry" proposal in a 4 to 1 vote in February 2005. However, since that decisive vote the FCC has gotten a new chairman and new members. Before he became the current chairman, Commissioner Kevin Martin, was the only vote in favor of "multi-cast, must-carry" in 2005. Observers of the FCC note that with the appointment of two new Republican members, the chairman may believe he now has a 3 to 2 majority that will approve the proposal.
There is no scheduled date for a public vote on the proposal, but there is a possibility Chairman Martin could put it on the agenda for the upcoming public meeting of the Commission on June 15th. The proposal is now being circulated among the offices of the 5 commissioners.
Until Chairman Martin began to circulate the proposal at the FCC, the expectation had been that Congress would take the next action on must-carry, where pending telecommunications bills could serve as vehicles for policy change - or not. The Chairman's action has altered the trajectory of the way must-carry issues were expected to be resolved.
Apparently, the FCC has no plans to reconsider the "dual must-carry" proposal (see earlier entries on this page about "dual must-carry").
C-SPAN has been a consistent opponent of "multi-cast, must-carry" because we believe the government should not give preferential treatment to broadcast stations over cable programmers as both seek access to the limited channel capacity of cable systems. We believe that if the proposal becomes effective, the C-SPAN Networks will have fewer opportunities to expand the availability of our public service programming to cable television subscribers.
C-SPAN remains opposed to any form of the must-carry rule, whether it applies to analog or digital television. The rule and its variations infringe on C-SPAN's First Amendment free speech rights, and, it is unfair. We will keep you informed of the progress of the must-carry debate on this page.
May 1, 2005
MUST-CARRY DEBATE MOVES TO CONGRESS
Earlier this year in February the Federal Communications Commission decisively rejected the so-called "dual must-carry" proposal. This proposal would have required cable operators to give every local broadcaster a second channel on their systems during the perhaps years-long transition from analog broadcasting to digital broadcasting.
The FCC also rejected the "multi-cast, must-carry" proposal. If approved, this proposal would have forced cable operators to give broadcasters enough space on their systems to deliver several broadcast signals instead of just one.
C-SPAN had opposed both proposals because we believe the government should not give preferential treatment to broadcast stations over cable programmers as both seek access to the limited channel capacity of cable systems. Had the proposals become effective, the C-SPAN Networks would have had fewer opportunities to expand the availability of our public service programming to cable television subscribers.
However, the must-carry debate is not over. The debate has moved to the Congress where legislation to govern the upcoming transition from analog television to digital television is pending. There continue to be efforts on Capitol Hill to resuscitate variations of the must-carry rule and enact them into law.
C-SPAN remains opposed to any form of the must-carry rule, whether it applies to analog or digital television. The rule and its variations infringe on C-SPAN's First Amendment free speech rights, and, it is unfair. We will keep you informed of the progress of the must-carry debate in Congress on this page.
February 10, 2005
FCC DECISIVELY REJECTS "DUAL MUST CARRY" AND "MULTI-CAST MUST CARRY"
Today the FCC rejected the so-called "multi-cast must carry" proposal which if approved would have forced cable operators to give broadcasters enough space on their systems to deliver several broadcast signals instead of just one. The vote was 4-1 against the proposal. The Commission decided that the Communications Act did not authorize them to impose that version of the must carry rule into the digital age.
The FCC also voted 5-1 to reject the "dual must carry" proposal. This proposal would have required cable operators to give every local broadcaster a second channel on their systems during the perhaps years-long transition from analog broadcasting to digital broadcasting.
C-SPAN is gratified by the Commission's decisive ruling that the government should not grant a preferred status to broadcasters over cable programmers. C-SPAN has been consistent over the years in promoting the First Amendment rights of cable programmers. Today's vote was a vindication of that position. We look forward to a fair competition with all others, including broadcasters, for channel space on cable systems for our networks (especially C-SPAN3�a digital service).
However, these votes may not mean that these issues are settled. It is possible that Congress could be persuaded to revisit the must carry requirements as part of its review of the digital transition. If so, C-SPAN will continue to advocate for an approach that permits fair, market-based competition and that respects the First Amendment rights of cable programmers and operators.
February 2, 2005
FCC VOTES ON "MUST CARRY" RULE FEBRUARY 10, 2005
On February 10th the FCC will make a decision that could affect whether or not cable systems will be able to carry the C-SPAN Networks in the future.
The Commission is scheduled to vote on the so-called "multi-cast must carry" proposal which if approved would force cable operators to give enough free space on their digital system so that every local broadcaster would be able to use the system to deliver several broadcast signals instead of just one (See: entry for December 3, 2004, below).
If the proposal is approved, the demand from broadcasters for space on cable systems would be so great that much less space would be available for a system to carry C-SPAN, C-SPAN2 or C-SPAN3. Unlike broadcast stations, the C-SPAN Networks have no government mandated guarantee of the right to be distributed by cable operators.
At the same meeting the FCC is also expected to rule once again on the "dual must carry" proposal. This proposal would force cable operators to give each local broadcaster a second channel on cable systems during the nationwide transition from analog to digital television. As of this writing the FCC is not expected to approve the "dual must carry" proposal - most of the energy of the debate has been expended on the related "multi-cast must carry" issue.
The FCC meeting that will decide these issues will begin at 10 am on Thursday, February 10th.