Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: TUESDAY, June 28, 1994 TAG: 9406300046
SECTION: BUSINESS PAGE: C8 EDITION: METRO
SOURCE: Associated Press
DATELINE: WASHINGTON LENGTH: Medium
``It's something of a mixed bag,'' Daniel Brenner, chief counsel of the National Cable Television Association, said of the high court's first venture onto the information superhighway.
Broadcast attorneys said the decision would have little immediate impact on viewers. TV stations will continue to be carried on cable systems, because the carriage provisions will remain in effect until a final constitutional determination is made by the courts.
``Nothing changes on your cable system as a result of today's decision,'' said Bruce Solker, counsel for Turner Broadcasting System Inc., which brought the provisions to court.
The justices, by a 5-4 vote, told a lower court to restudy the challenged federal law that continues to impose a ``must-carry'' regulation on cable systems.
A special three-judge federal court had ruled that the law does not violate the cable industry's free-speech rights as protected by the Constitution's First Amendment.
Only one justice wanted to uphold the law. Four voted to strike it down.
Other aspects of the decision:
The court rejected the Clinton administration's contention that cable operators are entitled to no more protection against regulation than over-the-air broadcasters.
``In light of ... fundamental technological differences between broadcast and cable transmission,'' courts should use a higher standard in determining whether government regulation violates cable operators' free-speech rights, Justice Anthony M. Kennedy wrote in the court's main opinion.
The Constitution's free-speech guarantee must be considered, and adhered to, when government tries to tell cable companies what stations they must carry, Kennedy said.
The court flatly rejected the cable industry's contention that it should be treated in the same fashion as the print media.
And the justices, 5-4, refused to treat the must-carry rule as regulation based on the content of speech, a type of government action subjected to the most stringent judicial review.
Kennedy said the three-judge court must determine how financially burdened the broadcast TV industry would be without the must-carry requirement.
Rep. Edward Markey, D-Mass., a key architect of the law, called the decision ``good news for consumers who must continue to rely on free, over-the-air broadcasting for their news and entertainment - almost 40 percent of all American homes.''
But Brenner said the continued forced carriage of broadcast stations will prevent consumers from getting new cable networks and other services added to their cable systems.
The fate of the must-carry provision is not likely to affect the rates cable systems charge viewers, but it could affect the rates charged for advertising.
Congress feared that local broadcast stations would be frozen out by cable operators not wanting to share advertising dollars. That would mean viewers might not be able to see some local broadcast stations on their cable systems.
The three-judge court voiced those concerns when it upheld the law.
Monday's fragmented decision, which yielded five separate opinions, said the lower court did not give the cable industry all the free-speech protection it deserves.
Brenner said the cable industry is confident the government and broadcasters cannot prove any potentially ruinous financial effects. Jack Goodman of the National Association of Broadcasters disagreed.
``The decision recognizes the bottleneck nature of the cable industry. We don't view it as a major loss for us,'' he said, adding that the case could return to the nation's highest court someday.
by CNB