By the early 1970s, cable’s rapid growth, capacity for more channels, and better reception led the FCC to seriously examine industry issues. In 1972, the commission updated or enacted two regulations with long-term effects on cable’s expansion:must-carry rules and access-channel mandates.
Must-Carry Rules
First established by the FCC in 1965 and reaffirmed in 1972, the must-carry rules required all cable operators to assign channels to and carry all local TV broadcasts on their systems. This rule ensured that local network affiliates, independent stations (those not carrying network programs), and public television channels would benefit from cable’s clearer reception. However, to protect regional TV stations and their local advertising, the guidelines limited the number of distant commercial TV signals that a cable system could import to two or three independent stations per market. The guidelines also prohibited cable companies from bringing in network-affiliated stations from another city when a local station already carried that network’s programming.
Access-Channel Mandates
In 1972, the FCC also mandated access channels in the nation’s top one hundred TV markets, requiring cable systems to provide and fund a tier of nonbroadcast channels dedicated to local education, government, and the public. The FCC required large-market cable operators to assign separate channels for each access service, while cable operators in smaller markets (and with fewer channels) could require education, government, and the public to share one channel. In addition to free public-access channels, the FCC called for leased channels. Citizens could buy time on these channels and produce their own programs or present controversial views.
Cable’s Role: Electronic Publisher or Common Carrier?
Because the Communications Act of 1934 had not anticipated cable, the industry’s regulatory status was unclear at first. In the 1970s, cable operators argued that they should be considered electronic publishers and be able to choose which channels and content to carry. Cable companies wanted the same “publishing” freedoms and legal protections that broadcast and print media enjoyed in selecting content. Just as local broadcasters could choose to carry local news or Jeopardy! at 6 P.M., cable companies wanted to choose what channels to carry.
At the time, the FCC argued the opposite: Cable systems were common carriers—services that do not get involved in content. Like telephone operators, who do not question the topics of personal conversations (“Hi, I’m the phone company, and what are you going to be talking about today?”), cable companies, the FCC argued, should offer at least part of their services on a first-come, first-served basis to whoever could pay the rate.
In 1979, the debate over this issue ended in the landmark Midwest Video case, when the U.S. Supreme Court upheld the rights of cable companies to determine channel content and defined the industry as a form of “electronic publishing.”18 Although the FCC could no longer mandate channels’ content, the Court said that communities could “request” access channels as part of contract negotiations in the franchising process. Access channels are no longer a requirement, but most cable companies continue to offer them in some form to remain on good terms with their communities.
Intriguingly, must-carry rules seem to contradict the Midwest Video ruling since they require cable operators to carry certain local content. But this is a quirky exception to the Midwest Video ruling—mostly due to politics and economics. Must-carry rules have endured because of the lobbying power of the National Association of Broadcasters (NAB) and the major TV networks. Over the years, these groups have successfully argued that cable companies should carry most local over-the-air broadcast stations on their systems so local broadcasters can stay financially viable as cable systems expand their menus of channels and services.