For a very long time, Free State Foundation scholars have opposed the calls for the FCC to require that cable and satellite operators must carry broadcast channels in the ATSC 3.0 according to the government's dictate rather than the market's response to consumer demand. See, for example, Free State Foundation Adjunct Senior Fellow Michael O'Rielly's FSF Perspectives, "Let's Strongly Reject NextGen TV Mandates."
In this regard, I was pleased to see NCTA's comments filed with the FCC on January 20 contending that such a "must carry" government mandate is unconstitutional as a First Amendment violation. As NCTA puts it: "The Commission should also reject any calls to grant must-carry rights to 3.0 signals. In today’s video marketplace, must carry requirements are no longer supportable under the First and Fifth Amendments. Extending must carry requirements to 3.0 signals would only exacerbate these constitutional infirmities."
Right on.
Indeed, Free State Foundation scholars have been arguing that the FCC's "must carry" mandates violate the First Amendment since shortly after FSF was founded in June 2006. In that very same month, in "Taking the Constitutional Oath Seriously at the FCC," I wrote this:
"In 1994 in the Turner case, a sharply divided Supreme Court (5-4) barely upheld against a First Amendment challenge must-carry provisions that required cable operators to carry one signal of local broadcast stations. There is no evidence that, nor could there be in today's substantially changed communications environment, that the failure to carry multiple signals of local broadcasters will diminish the availability of local programming. And under Turner that is the test that must be met, with substantial and convincing evidence, to pass constitutional muster."
In 2010, FSF scholars penned several pieces arguing that continuing "must carry" mandates violate the First Amendment. This excerpt is from a blog posted in February 2010 by FSF's Seth Cooper titled, "Will the Supreme Court Decide 'Must Carry' Must Go?"
"The current state of video competition renders the 1990s rationale for must-carry obsolete. Only a person who has spent the last decade or so living deep inside a cave with no video reception capabilities whatsoever could be excused for not understanding that the video marketplace has undergone drastic change since the 1990s. Significantly, direct broadcast satellite has proven a strong source of competition with cable. The U.S. Court of Appeals for the District of Columbia Circuit recently acknowledged this in its August 2009 decision in Comcast v. FCC, striking down the FCC's cable subscribership caps. As I related in a prior blog post ("D.C. Circuit: Vindicating Video Competition"), that court expressly recognized the increasingly competitive and dynamic marketplace for video:
[T]he record is replete with evidence of ever increasing competition among video providers: Satellite and fiber optic video providers have entered the market and grown in market share since the Congress passed the 1992 Act, and particularly in recent years. Cable operators, therefore, no longer have the bottleneck power over programming that concerned the Congress in 1992. Second, over the same period there has been a dramatic increase both in the number of cable networks and in the programming available to subscribers.
In fact, the D.C. Circuit observed that "satellite television companies, which were bit players in the early '90s, now serve one-third of all subscribers." DBS subscribership growth over the last decade marks a dramatic change in the competitive video marketplace."
Of course, 2010 was way before the rise of dozens of popular Internet streamers. Nevertheless, we contended that the video marketplace already had changed so much that the notion of cable operators having "bottleneck power" was obsolete. It bears repeating what we said over 15 years ago: "Only a person who has spent the last decade or so living deep inside a cave with no video reception capabilities whatsoever could be excused for not understanding that the video marketplace has undergone drastic change since the 1990s."
Again, I'm pleased NCTA has included a First Amendment argument in its opposition to suggestions that the government should mandate carriage of broadcast channels in the ATSC 3.0. It's way past time for "must carry" to be confined to the constitutional dustbin in which First Amendment violations reside!
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