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O’Connor’s Opposition to Must-Carry Recalled

Jul 1, 2005  •  Post A Comment

Supreme Court Justice Sandra Day O’Connor’s retirement, announced today, is better news for broadcasters than cable in at least one crucial respect: Ms. O’Connor led the unsuccessful high court charge to overturn the industry’s must-carry rules in 1997.

The cable TV industry cited First Amendment concerns in its challenge to regulations that require operators to carry the signals of local broadcast TV stations. In the dissenting opinion she wrote for the court in the 5-4 decision, Ms. O’Connor agreed with the cable industry’s analysis, accusing the court’s majority of having “commandeered” cable channels without just cause.

“A highly dubious economic theory has been advanced as the ‘substantial interest’ supporting a First Amendment burden on cable operators and cable programmers,” she said at the time.

In the opinion for the majority, Justice Anthony Kennedy said: “Congress could reasonably conclude from the substantial body of evidence before it that attaining cable carriage would be of increasing importance to ensuring broadcasters’ economic viability.”

The high court’s makeup is of particular interest to broadcasters and the cable TV industry because the must-carry issue could come before the Supreme Court again if cable, as expected, challenges any new must-carry obligations that Congress or the Federal Communications Commission establishes for broadcast digital TV operations.

In her July 1 letter to President Bush, Ms. O’Connor, who was originally nominated to the high court in 1981 by former President Ronald Reagan, said her retirement would be “effective upon the nomination and confirmation of my successor.”