First Principles: Restoring the First Amendment to Its Rightful Place

On December 27, the D.C. Circuit issued an important opinion involving Federal Communications Commission rules promulgated to implement the Cable Act of 1992. Court opinions may not have been on your holiday reading list – there is a reason my wife calls me a workaholic! – so you may have missed the opinion in Agape v. FCC.

Because the court's decision implicates first principles – in this case respecting the First Amendment's free speech guarantee – you should be aware of it.

In Agape, the D.C. Circuit rejected a challenge to the FCC's 2012 order allowing the FCC's "Viewability Rule" to expire. The Viewability Rule imposed certain "downconversion" requirements on cable operators in connection with "must carry" obligations created by the Cable Act of 1992. In the 1992 Act, Congress required cable television systems to dedicate some of their channels to local broadcast stations, creating "must carry" rights for broadcast stations that elect mandatory carriage.

For present purposes, it is enough to understand that the Commission allowed the Viewability Rule to sunset in light of the transition from analog to digital broadcasting and accompanying technological and marketplace changes. Or as Judge Edwards puts it near the beginning of his opinion: "Since 2007 [when the Viewability Rule was promulgated], the telecommunications market – including the technology in use by broadcasters, cable distributors, and customers – has changed dramatically."

Judge Edwards explains why each of the challengers' arguments regarding statutory authority, arbitrary reasoning, and APA notice-and-comment violations are to no avail, and I refer you to his decision on these points. But the principal reason I write now is to call your attention to Judge Kavanaugh's excellent – and important – concurring opinion.

While Judge Kavanaugh agrees in full with Judge Edwards' opinion, he would go further: "The dramatically changed marketplace that the Commission aptly recognized in this case undermines the constitutional foundation of the Viewability Rule and, indeed, of the broader must-carry regime as well."

Judge Kavanaugh asserts – just as he did in his concurring opinion in the Tennis Channel case in May 2013 – that the "must carry" and other program carriage requirements imposed on cable operators violate the First Amendment. He points out that, in sustaining these requirements in Turner Broadcasting System, Inc. v. FCC in 1994, the Supreme Court "rested its approval of the must-carry regime on the fact that cable operators in the early 1990s possessed 'bottleneck monopoly power.'" As Judge Kavanaugh explained:

"Things have changed. In the two decades since Congress enacted the Cable Act of 1992, the video programming marketplace has radically transformed. Cable operators today face intense competition from a burgeoning number of satellite, fiber optic, and Internet television providers – none of whom are saddled with the same program carriage and non-discrimination burdens that cable operators bear. As this Court has flatly stated, cable operators 'no longer have the bottleneck power over programming that concerned the Congress in 1992.'"

I am pleased that, in his opinion, Judge Kavanaugh cited my 2009 Charleston Law Review article, "Charting a New Constitutional Jurisprudence for the Digital Age," in support of that proposition. In my article, after reviewing the Supreme Court's jurisprudence, along with marketplace developments, I argued that legacy program content requirements, including those applying to cable operators, should no longer be considered constitutional. I concluded this way:

"Perhaps it was predictable, maybe even likely, that the First Amendment’s protections would be limited substantially during the twentieth century’s Analog Age that tended towards a monopolistic or oligopolistic communications marketplace. But now, in the face of proliferating competitive alternatives attributable to profound marketplace and technological changes, it ought to be considered predictable and yes, even likely, for the Court to establish a new First Amendment jurisprudence befitting the media abundance of the twenty-first century’s Digital Age."

In addition to relying on my law review article, Judge Kavanaugh cited Christopher Yoo's Vertical Integration and Media Regulation in the New Economy at 19 Yale. J. on Reg. 171. I am proud that Professor Yoo is a member of the Free State Foundation's Board of Academic Advisors.

This excerpt from Judge Kavanaugh's opinion captures the essence of the matter:

"Unsurprisingly, cable regulations adopted in the era of Cheers and The Cosby Show are ill-suited to a marketplace populated by Homeland and House of Cards. And the constitutional problems infecting the 1992 Cable Act’s various program carriage and non-discrimination requirements grow more significant every day, as new video programming distributors emerge and prosper. The upshot is that the cable 'bottleneck monopoly' on which Turner rested no longer exists – and, as a result, the Act’s infringements on cable operators’ editorial discretion no longer can withstand First Amendment scrutiny."

I like the reference to House of Cards in this sense – the whole edifice of legacy First Amendment jurisprudence regarding the electronic media was constructed primarily on notions of "scarcity" and "bottleneck monopoly power" that no longer exist in today's communications marketplace, if ever they did. This First Amendment jurisprudence is a "House of Cards" waiting to crumble. I am confident that, before too much longer, other jurists will join Judge Kavanaugh in recognizing that existing government controls and program carriage mandates impinging on the editorial discretion of cable operators and other electronic media are incompatible with the free speech rights guaranteed by the First Amendment.

The FCC itself has a duty to conform its actions to the dictates of the First Amendment, so the agency should not wait for the courts to order it to do so. But, in the meantime, I commend to you a close reading of Judge Kavanaugh's decision. It's about first principles – in this instance restoring the First Amendment to its rightful place.