Broadcasters, Cable Debate Home-Shopping Channel Must-Carry Rights

The commission should not redo an order simply just because the Center for the Study of Commercialism asked, said the National Association of Broadcasters. The 1992 Cable Act required a completed FCC home-shopping proceeding by July 1993; it is too late to reopen the proceeding, said Shop NBC. “Congress did not contemplate upsetting this applecart now,” it said. “Even in the absence of such a statutory deadline, the courts have consistently held that petitions for reconsideration must be resolved within a reasonable period of time - not after 14 years.” The Home Shopping Network said the 1993 FCC order “properly avoided a subjective evaluation of programming content, which would have taken the Commission down a constitutionally-hazardous road.” The network, owned by IAC/InterActiveCorp, noted that it carries Rising Chef and other shows in addition to selling electronics, jewelry and clothes.

A joint filing by several broadcasters turned the commercialism center’s petition on its head, claiming the agency has no grounds for reconsidering its 1993 decision or the Center’s claim that the order was not warranted. “Congress, in its wisdom, did not direct the Commission to consider extraneous factors favored by critics of home shopping stations” or “by any other special interest group,” said Cocola Broadcasting, Ion Media and Jovon Broadcasting. “Reviewing the record more than 5,000 days after the 270-day period identified by Congress in 1992” would be “a clear violation of Congressional intent,” they said. Fewer than 100 TV stations devote most of their programming to retailing, said Media Access Project President Andrew Schwartzman on behalf of several public interest advocates. The Home Shopping Network said 74 low-power stations in 60 cities distribute its programs to 26.5 million homes. The company relies on the broadcasters to reach areas with few cable or satellite customers, it said.

The current FCC rulemaking stems from a 1993 petition by the Center, filed soon after an FCC order found retail channels qualified for mandatory cable carriage because they served the public interest. The Center petitioned the agency to reconsider. It is unclear why the agency waited until May 4 to seek comments on the petition in docket 93-8. “We have complained repeatedly about the inaction on this matter,” said Schwartzman. “I guess somebody finally heard us.” The Benton Foundation, the Campaign Legal Center, Common Cause and two other groups he represents said in a joint filing that selling products on TV does not serve broadcasters’ mandate to “educate and inform the public.” Channels’ use of “scarce and valuable television spectrum is antithetical to the public interest standard,” they said.

Bandwidth scarcity is among reasons for denying home- shopping channels must-carry rights, said the National Cable & Telecommunications Association and Cablevision. NCTA said the 1997 Supreme Court ruling in Turner v. FCC upheld must- carry rules partly because loss of cable carriage would cut station ad revenue. But Congress did not say such rules should apply to “direct viewer solicitations rather than audience share,” said NCTA. The First Amendment requires the FCC to weigh the extent to which devoting bandwidth to such channels instead of “more valuable cable offerings” saps cable capacity, said NCTA. Requiring carriage of the channels violates cable operators’ Fifth Amendment rights, said Cablevision. “Promoting home shopping stations does not rise to the level of an ‘important government interest’ justifying an intrusion on cable operators’ protected speech.” - Jonathan Make