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Cable giants lose first round in lawsuit challenging '92 cable act.

Cable conglomterates have lost the first round of legal wrangling over the constitutionality of the NLC-supported Cable Television Consumer Protection Act of 1992. On December 22 and 23, the federal district. court for the District of Columbia denied requests for a preliminary injunction in a suit filed by Time Warner Entertainment Company, and Discovery Communications, Inc. The suit challenges the constitutionality of the 1992 Act's must-carry and-retransmission consent provisions. These sections allow broadcasters to choose between mandatory carriage of their over-the-air signals, or require that cable companies compensate them in some way for retransmission rights. The cable Companies assert that the new Cable-Act unfairly interferes with their right to do business by imposing, in particular, the must carry provisions that create an "impermissible burden" on their First Amendment rights. The suit essentially. states that these provisions force Time Warner and Discovery to allocate channels and distribute programs that they might not otherwise choose' to place on their systems.

In addition to the mustcarry provisions, Time Warner and Discovery have challenged the constitutionality of several other sections of the 1992 and 1984 Acts including: leased access, exclusive licensing provisions, rate regulation, governmental damages immunity and public, education, and government (PEG) channel access.

A preliminary injunction would have ground the FCC's rulemaking process to a halt by enjoining the government from enforcing or implementing the challenged sections, and could have further issued a permanent injunction to the same effect. The preliminary injunction was denied on all counts since, according to court documents, the plaintiffs failed to demonstrate that they would be irreparably harmed if the court failed to enjoin the enforcement of the non-must-carry provisions.

Time Warner and Discovery were seeking to have a three-judge court hear their challenges to the non-mustcarry provisions in the Cable Act of 1992 and the Cable Communications Policy Act of 1984. The significance of having the case heard by a threejudge court is an expedited review process by the U.S. Supreme Court. A ruling by a single judge would go first to a court of appeals.

The district court ruled that Time Warner and Discovery's non-must-carry challenge would be heard by a single district court judge, since, among other reasons, Congress did not intend for a three judge panel to have jurisdiction over such claims. Briefs in both actions are due in February, arguments on the constitutionality claims will be heard on March 4, 1993.

FCC Comments NLC has filed comments with the FCC on behalf of local governments on ,rate regulation, customer service standards, home wiring, indecent programming and mustcarry/retransmission consent. The FCC has until April 5, 1993 to promulgate rate regulations and customer service standards.

Once final regulations are issued, cities will have the opportunity to regulate cable through certification process yet to be determined by the FCC, Pl ease review future issues of Nation's Cities Weekly for key dates and deadlines.
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Title Annotation:Cable Television Consumer Protection Act of 1992
Author:Ferrera, Anna Pulido
Publication:Nation's Cities Weekly
Date:Jan 11, 1993
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