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Washington Law Review

Abstract

The evolution of cable television from a community antenna television (CATV) system carrying only broadcast signals to a high capacity communications system carrying a wide variety of television and nonvideo services raises significant policy and legal questions about the role of government regulation of cable. Congress has recently considered legislation that would limit the ability of local governments to regulate the local cable franchise. Such legislation and the trend of the Federal Communications Commission (FCC) to reduce federal regulation of electronic media underscore the need for a clear definition of the appropriate regulatory role for government. To determine the appropriate regulatory scheme for cable, its proper treatment under the first amendment of the Constitution must be resolved. The National Cable Television Association (NCTA), the major cable industry trade association, asserts in a report to Senator Packwood that cable is analogous to newspapers. The NCTA argues that a cable operator should be considered a newspaper publisher under the first amendment and, as such, entitled to first amendment protections accorded a newspaper publisher, such as total editorial discretion, "without conditions and without requirements of access or balance." This article disputes this position and argues that, due in part to cable's monopoly position, it is more analogous to the broadcast medium than it is to the press. Cable, however, in the final analysis is a unique communications medium and should be treated as such for regulatory and first amendment purposes.

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