Justices define cable's rights

June 28, 1994|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun Sun staff writer Michael Dresser contributed to this article

WASHINGTON -- Defining for the first time the free-press rights of cable television, the Supreme Court ruled yesterday that the industry has less constitutional protection than newspapers and magazines but more than regular radio and TV broadcasters.

But the decision left unresolved the question of whether cable TV systems can be required by the government to carry local broadcast TV stations, an issue which could be settled ultimately by a tie-breaking vote of a future justice, Clinton nominee Stephen G. Breyer.

Yesterday's ruling split the court 5-4, with the majority clearly in favor of continued federal supervision of the cable industry at a time when the government is moving toward significant new controls on entry to the "information superhighway."

A key to the decision was that cable TV operators own "the essential pathway to cable speech," and thus are in a position to shut out local TV stations on a medium that reaches 60 percent of America's homes -- potentially substituting paid TV for the free variety.

The majority appeared troubled, as Congress was in 1992, about the future of free TV if cable TV owners reserve their channels for themselves or for program packagers and refuse to carry local TV stations, thus depriving those stations of their audience and impairing their ability to sell ads.

Although four dissenting justices sided with cable companies this time, none of those four appeared ready to support complete freedom of expression for cable of the kind the nation's print press always has had.

For example, Justice Sandra Day O'Connor, who spoke for the dissenters, said the government could sometimes compel cable broadcasters to open some channels to outsiders -- something that could not be done constitutionally with newspaper or magazine space.

For more than a quarter of a century, cable TV has tried to persuadethe courts that it should be treated, under the First Amendment's free-press provisions, just as the unregulated -Z newspaper and magazine industry is, and not as the licensed regular broadcast industry is. That is the plea that failed (P yesterday.

No member of the court, however, supported the Justice Department's and Federal Communications Commission's view that cable TV should be subject to as much regulation as licensed radio and TV stations, often required to meet government program standards in return for being able to use the public airwaves.

The court, with no dissent, said cable TV has free speech rights that could be jeopardized if its First Amendment rights were no greater than what regular broadcasters enjoy. Cable TV is essentially a private medium, and the government thus has limited authority to tell it what its "speech" may be, the court said.

The decision raised some doubt about the constitutionality of the specific regulation at issue in this test case: a 1992 federal law that requires cable TV systems to carry -- free of charge -- all the broadcast TV stations in their areas.

The so-called "must carry" rules will now be re-examined by a special U.S. District Court here, which had upheld them in full last year. The Supreme Court majority said the lower court should look more deeply into two issues:

* Claims by local TV stations that they must have access to free time on cable in order to save over-the-air broadcasting -- which charges no fees -- from economic collapse.

* Claims by the federal government that forced access to cable TV for local broadcast stations will not curb too greatly the free-press rights of cable operators.

As of now, the court said in an opinion written by Justice Anthony M. Kennedy, neither point has been proved.

After the District Court deals again with the rules, the case could return to the Supreme Court. By that time, nominee Stephen G. Breyer may be a justice. Because he is to replace retiring Justice Harry A. Blackmun, who was in the majority in the 5-4 decision yesterday, Mr. Breyer might have the controlling vote.

The fact that the Supreme Court did not reach a final conclusion on the validity of the "must carry" rules enabled both sides in the heated, years-long dispute over cable's rights to find something in the result they liked.

Edward O. Fritts, president of the National Association of Broadcasters, was cheered that the majority did not strike down those rules flatly. He said he was confident that the District Court "will find that Congress had adequate evidence on which to base the must-carry provisions of the Cable Act."

Jim Ewalt, executive vice president of the Cable Telecommunications Association, said he was confident that broadcasters and the government would be unable to justify the rules. He suggested that regular broadcast stations had exaggerated their lack of access to cable.

"It's the fringe broadcasters that didn't get carried," he said.

In the Baltimore area, cable executives said the "must carry" rules have had little effect on their operations. Marilyn Harris-Davis, a spokeswoman for United Artists Cable in Baltimore, said its 74-channel capacity has not required the system to forgo any programming it would have liked to carry. Stephen Burch, regional vice president for Comcast Corp., said the rules have had little effect on that company's stations in Howard, Harford and Baltimore counties.

In Anne Arundel County, representatives of Jones Intercable and TCI said their stations there had been forced to add WHSW (Channel 24), a Baltimore home shopping programmer, because of the rules.

Ben Painter, marketing manager for Jones, said his system dropped a cable home shopping channel to make way for the broadcaster. Sharon DeArmand, area marketing manager for TCI of Maryland, said the addition of WHSW took up a vacant channel on its system.

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