Neither Newspaper nor Broadcaster

July 04, 1994

The Supreme Court doesn't know what it thinks about the Federal Communications Commission's rule that cable operators must carry local broadcast stations' programs whether they want to or not. So it sent the question back to a lower court to study, calling on it to make the FCC prove its justification for the rule -- its belief that broadcasters can't survive without such access to cable. By the time the study is finished, two things will have happened that will bear heavily on what -- if anything -- the court does then.

A new Supreme Court justice will have been named. It is a certainty approaching 100 percent that this will be Judge Stephen Breyer. He will replace Justice Harry Blackmun, who provided the fifth vote in the 5-4 decision that said in effect that if the lower court finds broadcasters would go out of business if they can't get access to cable, then the law that produced the so-called "must carry" regulation must be upheld. Judge Breyer is famous for his skepticism about government regulations where economic activity is concerned. So he might well join the losers in ruling against the broadcasters the next time around, reversing the outcome.

The second thing that will have happened is that the competitive and technological environment of over-the-air broadcasting and cable delivery will be changed -- perhaps greatly so. Television is speeding along on the information superhighway at such an accelerating pace that the 1992 law the court is now trying to deal with in regards to cable and conventional broadcast entrepreneurs could be hopelessly out of date in just a couple of more years.

Though the court was sharply divided on certain aspects of the case before it, there was near unanimity on one point: Cable deserves more First Amendment protection than broadcasters, but less than newspapers.

Broadcasters are subject to government regulation because the number of frequencies is limited. Newspapers and magazines are not, because theoretically there is no limit on the number of publications that can co-exist in a community. Cable's large and bTC growing capacity for channels makes it more like a newspaper than a broadcaster. But a single cable operator's potential role as a "gatekeeper" in a community, deciding on what will and won't be on the tube, makes some government oversight reasonable.

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