Broadcasting

Communications technology advanced again when cable television joined traditional broadcast radio and television. Cable television, or community antenna television (CATV), provides a means for otherwise inaccessible areas to receive broadcast signals that are in some way impeded. The FCC claimed authority over the regulation of cable television in 1966. The claim of this authority was challenged, but in 1968, it was upheld by the Supreme Court (United States v. Southwestern Cable Co., 392 U.S. 157, 88 S. Ct. 1994, 20 L. Ed. 2d 1001).

Dealing with cable television has proved to be controversial. The standards that were originally established in the Communications Act apply to broadcast television; cable television is not broadcast across the airwaves—it is transmitted through coaxial cable that may be able to carry over 200 channels. Because of this fact, some argue that cable television should be treated more like print media such as newspapers and magazines, than like broadcast television. Since cable operators select the channels that they carry, they argue that they should be treated as "electronic publishers."

Such distinctions are significant because the U.S. Supreme Court has held that the First Amendment will tolerate more government regulation of the broadcast media than of the print media because the physical capacity of the airwaves is limited and cannot accommodate all the existing demand (FCC v. National Citizens Committee for Broadcasting, 436 U.S. 775, 98 S. Ct. 2096, 56 L. Ed. 2d 697 [1978]). In other words, without regulation, the competing voices on the airwaves would drown each other out.

In one form or another, government regulation is involved in two issues concerning cable television. One issue is whether cities may limit access to all or part of their territory to a single cable supplier. Many cities have granted what are essentially MONOPOLY franchises, and this practice has been challenged by cable suppliers who argue that disallowing them a franchise interferes with their free speech rights.

The cable franchise system that exists for cable operators was approved by Congress in 1984 in the Cable Communications Policy Act (15 U.S.C.A. § 21; 18 U.S.C.A. § 2511; 46 U.S.C.A. §§ 484–487; 47 U.S.C.A. § 35 et seq.). This act attempted to balance the interests of cable operators, who wanted less regulation, with the public-policy concerns of the cities, which wanted guarantees that poorer neighborhoods would be wired for cable and that educational and government programming would not be neglected.

Under 47 U.S.C.A. §§ 541–543, a franchising authority—usually a city or county—may award one or more franchises within its jurisdiction; in practice, most have chosen one. Franchising authorities are authorized to require cable operators to reserve channel space for public, educational, and government use. Operators may also be required to make space available for lease for commercial use by persons not affiliated with the operator.

This system of franchising has been attacked from both sides. Some operators have become upset when their applications for franchises were denied in areas where other operators had established franchises. The public has also been concerned over the monopolistic nature of cable operators. Arguments often revolve around the issue of cable rates; competition among cable operators, it is argued, would also lead to competitive pricing of services. Despite this argument, very few franchising authorities choose to offer more than a single cable operator to an area's residents.

The second issue surrounding the regulation of cable television is whether the FCC's "must-carry" rules, which require a cable operator to carry all local television stations, violate the First Amendment. The must-carry rules were instituted in an effort to ensure that cable television would not undermine the financial viability of free community-oriented television by attracting so many viewers away from local broadcast television stations that the advertising revenues of those stations would plummet. In 1984, a federal appeals court held that the must-carry rules violated the First Amendment (Quincy Cable TV v. FCC, 768 F. 2d 1434 [D.C. Cir. 1985]). The Supreme Court denied review of the case, and the FCC eliminated the must-carry rules.

The must-carry rules were problematic for one main reason: although most cable operators have the ability to carry many hundreds of channels, some can carry only a dozen. Requiring the latter to carry all local stations severely limited their ability to attract subscribers. Operators also argued that being forced to carry all local broadcasts caused cable systems to become saturated and deprived cable programmers of opportunities to sell their services.