The U.S. Court of Appeals has rejected cable operators' First Amendment challenge to the FCC's program carriage regime, but did find that the commission's imposition of a standstill on prices, terms and conditions of a contract for which a complainant was seeking renewal was out of bounds.
The National Cable & Telecommunications Association had argued that the standstill needed more public vetting before the FCC adopted it.
Cable operators had also argued that the rules are content-based and needed to be subject to strict First Amendment scrutiny they had not gotten. The FCC had countered that the rules do not disfavor speech based on content, but instead regulates speech based on "affiliation with a cable operator," which, the commission points out, are the same grounds on which the D.C. circuit upheld leased access. The court agreed with the FCC on that score.
In a decision handed down Wednesday, the court said that the FCC's program carriage rules do not run afoul of the First Amendment because they are "content and speaker neutral" and thus warrant intermediate rather than strict scrutiny.
Under that test, the court said, the rules pass muster because they are "case-specific standards for identifying affiliation-based discrimination (a) serve important government interests in promoting competition and diversity in an industry still posing serious competitive risks, and (b) are narrowly tailored not to burden substantially more speech than necessary to further those interests.
The court did suggest that the FCC might want to take a fresh look at the carriage rules given the increased competition in the marketplace.
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