- The Washington Times - Tuesday, February 5, 2008

C-SPAN and five other cable programmers are suing the Federal Communications Commission over a new rule they say violates their First Amendment rights.

The rule requires most cable operators to make room in their channel lineups for both digital and analog transmissions of local broadcasters. The “must-carry” rule ensures that cable subscribers with analog TV sets can still access broadcast stations after the country’s government-mandated transition to digital television next February, the FCC said.

Cable systems don’t have enough space for all those stations, argue programmers like C-SPAN that worry about being pushed off cable lineups to accommodate local broadcasts.

“There’s only so much channel capacity on any cable-television system,” said Bruce Collins, general counsel for Washington-based C-SPAN. “If the government approves this rule, it means C-SPAN will be viewed less or will be available to fewer cable-television households.”

The public-affairs network yesterday filed a petition with the U.S. Court of Appeals for review of the carriage rule. C-SPAN was joined by Discovery Communications, the Weather Channel, TV One, A&E; Television Networks and Scripps Networks. The group says reduced access to its programming amounts to a violation of free-speech rights.

The FCC order is scheduled to take effect Feb. 18, 2009 — one day after the country transitions to digital TV. On that date, over-the-air broadcasters will no longer transmit analog signals, meaning that customers with analog TVs and no cable subscription will see their TV screens go black.

But the transition does not cover cable, and cable subscribers with analog TVs will be able to view local broadcasts on their cable operator’s analog tier, under the FCC requirement. The FCC estimates there are more than 40 million such customers.

“Ultimately, the American consumer is, and continues to be, our highest priority as we make this conversion to digital television,” FCC spokeswoman Mary Diamond said. “All Americans with cable — regardless of whether they are analog or digital subscribers — should be able to watch the same broadcast stations the day after the digital transition that they were watching the day before the transition.”

The FCC cites the 1992 Cable Act, which requires cable operators to ensure that local broadcast stations that must be carried are viewable by all cable subscribers.

In most cases, affiliates of big broadcast networks will be unaffected by the rule since networks typically negotiate their own carriage agreements with cable operators.

“The must-carries that we’re talking about are going to be second or third PBS affiliates or the independent station that is not significantly viewed,” Mr. Collins said, adding that assigning a “must-carry” status to local broadcasters gives them an unfair advantage over cable programmers.

But the National Association of Broadcasters, which represents many of the local stations in question, sharply criticized the C-SPAN group as “a handful of self-serving pay-TV programmers.”

“These programmers threaten to block consumer access to scores of foreign-language and religious TV stations all over America,” NAB spokesman Dennis Wharton said.

Mr. Collins said he expects oral arguments to take place in the fall.

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