Supreme Court to rule on cable operators' right to decide on programming

September 29, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court, starting its new term early, stepped yesterday into the midst of the nationwide controversy over cable television companies' right to control the programs that their customers get to see.

For the first time in the history of cable TV, the court agreed to spell out the amount of constitutional freedom cable operators have to pick their programming without government controls.

At issue, basically, is whether cable TV is to be treated constitutionally like newspapers, free to decide for itself what to publish, or like regular "over-the-air" radio and television, subject to a myriad of government rules on what may be broadcast.

The court will be ruling on a 1992 federal law that ordered cable TV companies to use up to one-third of their channels to carry the programs of local TV broadcast stations -- both commercial and educational.

Under the year-old law, the Federal Communications Commission has ruled that cable TV must carry, without a charge, the programs of stations that operate as electronic consumer supermarkets, such as the programs offered by the Baltimore-based Home Shopping Network.

The outcome of the case, industry lawyers have argued, could settle much of the future programming on what is now the most popular source of TV in the nation. TV sets in 60 percent of all homes in the country are now hooked up to cable systems, and 96 percent of U.S. homes could be.

In 1970, by contrast, only 9 percent of the homes had cable TV.

While cable television has been growing, the Supreme Court has passed up repeated chances to spell out cable operators' free speech rights. The justices voted yesterday to deal with that issue, doing so in one of a series of orders on new cases reaching them over their summer recess.

Although the court's new term does not officially begin until Monday, the justices took the highly unusual step of acting early to give themselves more to do. The court had agreed to hear so few cases in the coming term that its staff was running out of cases to schedule for hearings. Yesterday, the court put seven new cases on a special fast track to help fill out that schedule.

In another new case, the court agreed to rule on the constitutionality of laws in 27 states that impose a tax on illegal drugs. The issue is whether such a tax is an unconstitutional "second punishment" if it is levied after prosecution for drug crimes.

The court said it will hear a case in which a Montana family, faced with rising debts and the threat of losing their ranch, decided to go into the lucrative business of growing marijuana. A raid led to criminal prosecutions, and the family members pleaded guilty. Montana then levied a tax of $208,105 on 1,811 ounces of harvested marijuana.

But the most far-reaching of the court's new cases is the one dealing with cable TV's rights. That case tests Congress' power to decide what appears on cable TV.

In 1992, Congress feared that cable TV was taking over the U.S. broadcast industry and that it was threatening the continued existence of local broadcast stations. It therefore required cable companies to carry free of charge the entire program schedule of local stations that ask for access.

The cable industry is now complaining that to obey that law it must sometimes bump programs that it would prefer to offer. Thus, the industry contends, the government decides in place of the operators themselves some of what cable TV will broadcast.

The 1992 law, involving what is called "must carry" rules, was upheld by a special three-judge federal court here in April. Cable operators and program-packaging companies and networks then took the dispute directly to the Supreme Court. A final decision is expected by next summer.

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