Cable Television

• Author: Jeffrey Lehman, Shirelle Phelps

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The cable TV industry exploded from modest beginnings in the 1950s into a service that by 2003 reached 69 percent of all U.S. households that had television. Cable was initially a response to a need for improved transmission in areas where signals were weak or nonexistent. By the 1960s, consumers began to demand not only better reception but also more signals. This demand fueled the exponential growth of the industry. In 2003, almost ten thousand cable systems provided services to 73 million household subscribers in the United States. The industry has faced many legal issues, including programming and rate regulation, lack of competition, and customer service complaints. In addition, deregulation of the industry in the late 1990s has led to the consolidation of major cable companies.

The most contentious issue in cable television arises from FEDERAL COMMUNICATIONS COMMISSION (FCC) regulations that require cable operators to allot up to one-third of their channels to local broadcast stations. Known as must-carry rules, these were first enacted in the 1960s in an effort to protect the interests of local broadcasters. In 1985 and 1987, the Court of Appeals for the District of Columbia Circuit held that must-carry rules, as promulgated at the time, violated the FIRST AMENDMENT (see Quincy Cable TV v. FCC, 768 F.2d 1434 [1985], cert. denied, 476 U.S. 1169, 106 S. Ct. 2889, 90 L. Ed. 2d 977 [1986]; Century Communications Corp. v. FCC, 835 F.2d 292 [1987], cert. denied sub nom. Office of Communication of the United Church of Christ v. FCC, 486 U.S. 1032, 108 S. Ct. 2014, 129 L. Ed. 2d 497 [1988]).

Congress addressed the must-carry issue in the Cable Television CONSUMER PROTECTION and Competition Act of 1992 (47 U.S.C.A. § 325 et seq.). The 1992 Cable Act, passed over President GEORGE H.W. BUSH's VETO, required cable systems to carry most local broadcast channels and prohibited cable operators from charging

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local broadcasters to carry their signal. These requirements were challenged on First Amendment grounds in Turner Broadcasting System v. FCC, 512 U.S. 622, 114 S. Ct. 2445, 129 L. Ed. 2d 497 (1994). Turner Broadcasting asked the Supreme Court to apply a STRICT SCRUTINY test, similar to the one used to evaluate the constitutionality of restrictions on printed material, to determine whether the FCC's regulations infringed the industry's FREEDOM OF SPEECH. The FCC urged the Court to apply the same relaxed standard it had applied to broadcast media in Red Lion Broadcasting v. FCC, 395 U.S. 367, 89 S. Ct. 1794, 23 L. Ed. 2d 371 (1969).

The Court took a middle ground on cable communications. Noting that cable television is neither strictly a broadcast medium nor a print medium, the Court held that the relaxed scrutiny test adopted in Red Lion was inappropriate, but declined to adopt the strict scrutiny protection given to print publications. The Court held that any regulations that are content neutral?in other words, that do not dictate the content of programming and that have an incidental burden on free speech?will be judged by an "intermediate level of scrutiny." Any...