Mass Communications Law

Since the 1970s the FEDERAL COMMUNICATIONS COMMISSION (FCC) has required CABLE TELEVISION systems to dedicate some of their channels to local broadcasting stations. For many years cable operators did not challenge the constitutionality of these "must carry" provisions, believing that compliance was necessary to obtain operating licenses. With the dramatic growth in the cable industry, however, cable operators argued that they should be able to use these channels for more profitable programming. In the late 1980s, as a result of challenges by cable operators, the courts struck down must carry rules as a violation of the FIRST AMENDMENT.

Congress replied in the Cable Television Consumer Protection and Competition Act of 1992 (47 U.S.C.A. § 151 et seq.), providing that cable systems with twelve or fewer channels must carry at least three local broadcast signals and that larger systems must carry all local signals up to a maximum of one-third of the system's total number of channels.

Turner Broadcasting System, a leading cable operator, filed suit, claiming that the must carry law violated the First Amendment by suppressing and burdening free speech. The Supreme Court, on a 5–4 vote, in Turner Broadcasting System v. FCC, 117 S. Ct. 1174 (1997), rejected these arguments, finding that Congress had substantial evidence to justify the must carry provisions and that the provisions advanced important governmental interests unrelated to the suppression or burdening of free speech.

The Court noted that the must carry provisions preserve the benefits of free, over-the-air local broadcast television, promote the widespread dissemination of information from many sources, and advance fair competition in the television programming market. The Court was reluctant to abandon the law when 40 percent of U.S. households still rely on over-the-air signals for television programming. The Court found that when local broadcasters are denied cable access, audience size and advertising revenues decline, station operations are restricted, and BANKRUPTCY may result.

Conversely, the Court determined that the must carry provisions had not burdened cable operators, with the vast majority unaffected in a significant manner. Most systems had enough channels to accommodate local stations and their own programming. Therefore, Congress had not overstepped the First Amendment in mandating the must carry requirement.