Leased Access Constitutionality NPRM Seen Raising Thorny Issues

If the passage of time or evolution in law made it evident an agency rule is incompatible with a constitutional provision, it makes sense for the FCC to recognize that, said Karanjia, now at DLA Piper. Sunsetting the viewability rule, requiring hybrid cable companies in some situations to down-convert must-carry stations from digital to analog because of First Amendment considerations is an example, he said. The agency could apply the same logic to rescinding a rule if it's clear the basis for rule has changed, he said.

Karanjia said no agency would take lightly the decision to not enforce or adhere to a statute because of constitutional questions. Examples -- such as when DOJ opted not to defend the Defense of Marriage Act -- are few, he said. Communications Act Section 612 requires cable operators to set aside channel capacity for commercial use by unaffiliated video programmers -- the leased access requirement. Karanjia said there's agency precedent for applying the "canon of constitutional avoidance" that says when a statute or rule is open to different interpretations, don't adopt the one that leads constitutional concerns.

A cable lawyer said the leased access Further NPRM could lead the agency to dial back further its role in leased access, or not enforce the leased access rules altogether. He said the agency conceivably could be building a record if anyone wanted to go to court to challenge the leased access statutory requirement.

The FCC is under Congress and its authority stems from the Communications Act, but its officers are sworn to uphold the Constitution, said First Amendment lawyer Bob Corn-Revere of Davis Wright. In the past, such as with the fairness doctrine, it reported to Congress suggesting a constitutional issue has changed, he said.

The FNPRM noted the Leased Access Programmers Association argued leased access is a statutory requirement. But market dynamics have changed, so the rulemaking asked what discretion the agency might have "to reduce the burdens [imposed] on protected speech." Commissioners Jessica Rosenworcel and Geoffrey Starks voiced concerns at the June meeting about a possible First Amendment fight over other media regulation like kidvid. Kidvid is up for a July 10 vote (see 1906180080).

Justification for leased access rules was different when there were three main TV networks, said Cato Institute Levy Center for Constitutional Studies Director Ilya Shapiro. With less a natural monopoly today, there's less justification for regulating as a public utility, he said.

Such free speech arguments aren't new, with the twin Supreme Court Turner Broadcasting cases involving the First Amendment being "one of the most contentious disputes in cable regulation," emailed University of Virginia law professor Tom Nachbar, a regulatory law expert. With issues like kidvid, the concerns are more about children's access to programming than changing understandings about the Constitution, he said. Many old arguments that were based on the scarcity of video content "are back on the table," he said, citing the ownership cap reconsideration.

Some see problems with the argument. The notion that First Amendment considerations with respect to cable "rise and fall with the number of competitors or distribution channels" isn't what the Supreme Court said in its 1997 Turner decision, said Public Knowledge Senior Counsel John Bergmayer. There the court rejected the argument must-carry rules violate such cable operators' rights and said the FCC is largely regulating business practices of cable companies and not their expressive activities. "I hope that courts continue to be skeptical" of cable and ISP positions that they're exempt from regulation as conduits of speech, Bergmayer said.

But that decision was 5-4 and the Supreme Court since then has been more expansive on First Amendment jurisprudence in cases like Citizens United and others, said Adam Candeub, director of Michigan State University's Intellectual Property, Information and Communications Law Program. He said regulatory approaches toward cable were accepted in part by courts because of the industry's market power and control of the flow of ideas and content. But the locus of that choke point has changed "from Comcast to YouTube," he said.

Candeub said it's possible the Supreme Court could eliminate huge swaths of cable regulation on First Amendment grounds, depending on how the newest justices vote on the issue. But whether the Republican majority advances that argument is questionable, he said. He said the court could more easily try to find other justifications like it's no longer economically prudent. Taken to its logical end, the argument the First Amendment protects all messages "would threaten the entire edifice of communication regulation," he said. "That's a pretty extreme step."

Even if market changes made FCC regulations a greater burden on speech, the agency is ultimately still an administration agency and not making First Amendment policy, said former FCC chief economist Tom Hazlett, now a Clemson University economist. It's not for the agency to judge the Constitution, he said. The agency under its public interest standard won't look just at First Amendment issues but also at economics and other considerations, Hazlett said.