At its July 16 public meeting, the FCC will vote on a proposed order that would make updates to its commercial leased access rules. The proposed order would bring the rules into closer alignment with actual market values for cable channels and reduce burdens on cable operators. As far as they go, these changes make sense and they ought to be approved by the Commission. If adopted, however, the order would sidestep the glaring First Amendment problems posed by cable leased access regulation.
Commercial leased access rules require cable operators to lease channel capacity to independent video programmers at government-set rates. Under the proposed order, leased access rates would be set according to a tier-based calculation intended to approximate the actual value of the leased channels. Also, maximum fees that cable operators may charge independent video programmers for leased access would be calculated annually based on contracts in effect the prior year. Apparently, these changes would reduce regulatory burdens on cable operators. Commission deserves credit for proposing these updates to the old rules.
But the First Amendment problem with cable leased access regulation remains. On the one hand, the FCC's proposed order acknowledges that significant changes have taken place in the video marketplace over the several years since the constitutionality of the cable leased access regime was upheld. Those changes put the constitutionality of leased access regulation in doubt. On the other hand, the proposed order agrees that "it is not the role of the Commission to adjudicate in the first instance the constitutionality of leased access requirements that have been mandated by Congress," so it offers no opinion on the First Amendment issue.
As Free State Foundation President Randolph May and I explained in our July 2019 comments to the FCC in its commercial leased access proceeding, leased access regulation is an unconstitutional "forced speech" mandate. Such regulation infringes on the First Amendment editorial rights of cable operators over what video programming they will carry and how much they can charge for content they may not want to carry. Supposed "bottlenecks" in the distribution pathways for video programming in the late 1980s and early 1990s provided the basis for upholding leased access regulation. Those bottlenecks do not exist in today's competitive video marketplace. Strict scrutiny is now the proper constitutional standard for evaluating cable leased access regulation. But there is no compelling government interest in regulating or limiting the editorial discretion of cable operators to program their services as they wish, and so cable leased access regulation fails strict scrutiny.
Although the FCC may believe that its limited role prevents it from doing away with leased access regulation, that should in no way inhibit members of Congress or the courts from acting within their own roles to address the glaring First Amendment problem with cable leased access regulation.
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