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NCTA: Government-imposed multicasting 'unconstitutional'

Tue, 09/06/2005 - 8:00pm
Jeff Baumgartner, CED

Government-mandated multicasting would violate the First and Fifth Amendments, National Cable & Telecommunications Association President & CEO Kyle McSlarrow asserted this week in a letter addressed to Congress.

The letter, accompanied by a legal analysis by Cooper & Kirk (PDF), noted that an imposed mandate of multicasting requirements "would constitute a 'taking' of cable operators' property, which in the absence of 'just compensation,' would be prohibited by the Fifth Amendment." Although a 1994 Supreme Court ruling required cable operators to carry one analog channel from each local broadcaster, the analysis from Cooper & Kirk, McSlarrow explained, requiring carriage of multiple streams of each broadcaster's programming "does not advance any legitimate government interest and would therefore be unconstitutional."

McSlarrow sent the letter as Congress starts to consider a proposed "hard date" for broadcasters to transition to digital and return analog spectrum to the government.

Although cable stands "ready to assist the transition" and has made steps to ensure a seamless move for cable customers, the industry has long opposed mandated multicasting demands made by broadcasters.

McSlarrow went on to argue that a government-imposed mandate for multicasting would make the Federal Treasury liable to cable companies for "billions of dollars," far outweighing the $10 million the government stands to gain from reselling the broadcaster's analog spectrum.

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