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.
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