Court: FCC Program Carriage Rules Don't Violate First Amendment

The US Court of Appeals has rejected cable operators' First Amendment challenge to the Federal Communication Commission's program carriage regime, but did find that the FCC’s imposition of a standstill on prices, terms and conditions of a contract for which a complainant was seeking renewal was out of bounds.

The National Cable & Telecommunications Association had argued that the standstill needed more public vetting before the FCC adopted it. Cable operators had also argued that the rules are content-based and needed to be subject to strict First Amendment scrutiny they had not gotten. The FCC had countered that the rules do not disfavor speech based on content, but instead regulates speech based on "affiliation with a cable operator," which, the FCC pointed out, are the same grounds on which the DC circuit upheld leased access. The court agreed with the FCC on that score.