Court finds cable regulation scheme constitutional

WASHINGTON, D.C.–In late August a unanimous panel of the U.S. Court of Appeals in Washington, D.C. upheld the constitutionality of the 1992 and 1984 cable laws, which included rate regulations, requirements to reserve channels for special uses, and indecency liability provisions. The provisions were challenged by Time Warner Entertainment Co.

The court upheld provisions from the 1984 act requiring cable operators to carry public, educational and governmental programming (“PEG”) channels and leased access channels. The 1992 act provisions included a rate regulation scheme, the revocation of cable operators’ immunity from liability for obscene programming carried on PEG or leased access channels, and other provisions.

Time Warner argued that nine of the provisions in the Cable Television Consumer Protection and Competition Act of 1992 and two of the provisions of the Cable Communications Policy Act of 1984 infringed upon their First Amendment rights of freedom of speech by directly regulating, limiting, or specifying the content of cable programming.

Of particular interest to cable operators was the court’s decision to uphold the leased access regulation, which requires cable channels to reserve an unspecified percentage of cable operators’ channels and make them available to other producers in order to give cable subscribers “diversity” in programming.

The court also overturned a federal court decision concerning direct broadcast satellite. The lower court had ruled that a cable act provision requiring DBS providers to reserve between four and seven percent of their channel capacity for educational, non-commercial programming was unconstitutional.

Time Warner attorney Stuart Gold said the company plans to appeal the decision either by asking for a rehearing by the entire court or appealing it directly to the U.S. Supreme Court. (Time Warner Entertainment Co. v. FCC; Media Counsel: Stuart Gold, New York)