Must-carry rules, first instituted by the Federal Communications Commission (FCC) in 1965, require cable systems to carry local broadcast television stations. These rules were originally designed to protect the local stations, which were competing with cable networks for a limited number of cable channels, from losing market shares. Since their inception, some must-carry rules have been found to be constitutional while others have not. They have been frequently altered.
Appeals court found must-carry rules ‘incompatible’ with the First Amendment
In the mid-1980s, as cable networks proliferated, cable operators found must-carry rules to be increasingly burdensome because the operators were being forced to carry local broadcast stations in preference to the more popular and lucrative cable network channels. In 1985 in Quincy Cable v. Federal Communications Commission, the Circuit Court of Appeals for the District of Columbia found must-carry rules to be impermissible content-based regulations in violation of the First Amendment.
The next year, the FCC adopted new must-carry rules in an attempt to satisfy the court. In Century Communications Corporation v. Federal Communications Commission (1987), the rules were once again found to be “incompatible”with the First Amendment.
Congress re-established must-carry rules
The Cable Television Consumer Protection and Competition Act of 1992, enacted by Congress after extensive hearings and over a presidential veto, re-established the must-carry rules for cable operators. These modified rules gave local broadcasters a choice between requiring a cable operator to transmit a broadcast signal or preventing the cable operator from retransmitting a signal unless the operator paid a retransmission fee. If the broadcaster chose retransmission, the cable operator was not required to carry the broadcaster’s signal. Therefore, popular network-affiliated stations usually sought a retransmission fee, while unaffiliated local stations took the cable carriage option. The 1992 act also varied the application of must-carry rules according to the channel capacity of the cable system.
Supreme Court upheld the new rules
The new must-carry requirements were immediately challenged in Turner Broadcasting System, Inc. v. Federal Communications Commission (1993). When the case reached the Supreme Court in 1994, it upheld the principle of must-carry rules but required fact-finding by the district court to determine whether the rules were necessary. The district court found sufficient evidence that the must-carry provision furthered important governmental interests and was narrowly tailored to promote those interests. In 1997 the Supreme Court affirmed the lower-court ruling in a 5-4 opinion that held that Congress “has an independent interest in preserving a multiplicity of broadcasters.”
Must-carry scheme is altering to fit digital television
The current transition from analog to digital television transmission is altering the must-carry scheme. The Digital Television Transition and Public Safety Act of 2005 requires cable and satellite operators, as of February 2009, to agree to dual carriage of broadcasters’ analog and digital signals because of the low penetration of digital television sets in consumer households. The 2005 act does not, however, alter must-carry to impose “multicast must-carry,” which would require cable and satellite operators to carry local broadcasters’ multicasts, that is, other channels broadcast digitally along with a station’s primary signal. After passage of the 2005 act, FCC chair Kevin Martin publicly pushed for multicast must-carry rules because, he argued, they would help minorities and small businesses.
This article was originally published in 2009. Audrey Perry is a First Amendment, election, and campaign finance law attorney. She has served as counsel to several presidential campaigns. Ms. Perry is of counsel at the Sacramento law firm Bell, McAndrews & Hiltachk and an adjunct professor at Brigham Young University Law School, where she teaches Election Law.