Also known as:must-carry provision · must carry provisions · must carry provision · must-carry rules · must carry obligations
Written by attorneys · grounded in primary & secondary sources — see below
A statutory mandate requiring cable system operators to devote a specified portion of their channel capacity to the signals of local broadcast television stations. The requirement is treated as a content-neutral regulation of speech and is therefore subject to intermediate scrutiny.
Sources & Authorities
How it applies
Common Examples
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Cable Operator Must-Carry Challenge
Horizon Cable operates a system serving 200,000 subscribers in a single media market. Federal law requires it to carry the signals of every full-power local commercial station. Horizon sues, claiming the mandate forces it to alter its channel lineup and displaces its preferred programming. The court reviews the provisions under intermediate scrutiny to determine whether they advance an important interest without burdening substantially more speech than necessary.
Must-Carry Compliance Dispute
Metro Cable serves 150,000 subscribers across two adjacent markets. Federal must-carry rules require carriage of seven local stations, displacing two cable networks Metro had selected. Metro sues, arguing the rules compel speech and exceed the government's interest in preserving broadcast access. The court applies intermediate scrutiny to decide whether the provisions burden substantially more speech than necessary.
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Cases
Casebooks
Hornbooks
Study Supplements
Retransmission Consent Conflict
Summit Cable refuses to carry two local noncommercial stations, claiming insufficient channel capacity. The FCC enforces the must-carry provisions and orders immediate carriage. Summit sues, contending the mandate is not narrowly tailored. The court evaluates the order under intermediate scrutiny to determine whether it advances important interests without burdening substantially more speech than necessary.
Common questions
Frequently Asked
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What level of scrutiny applies to must-carry provisions?+
Must-carry provisions are treated as content-neutral regulations of speech. They are therefore subject to intermediate scrutiny rather than strict scrutiny. The government must show that the provisions advance important interests unrelated to the suppression of speech and do not burden substantially more speech than necessary.
How do courts determine whether must-carry provisions are narrowly tailored?+
Courts examine whether the provisions leave operators ample room to convey their own messages and whether less restrictive alternatives would achieve the government's goals. Temporary or limited displacement of private content weighs in favor of narrow tailoring. Rejection of a voluntary alternative without explanation may indicate insufficient tailoring.
Do must-carry provisions single out cable operators for disfavored treatment?+
Regulations that apply to one medium or subset of speakers do not automatically trigger strict scrutiny. The fact that must-carry rules affect only cable operators does not by itself render them unconstitutional. Courts instead apply the intermediate-scrutiny test to the content-neutral purpose and tailoring of the provisions.
512 U.S. 622 (1994)Constitutional Law
…imposing minimum technical standards for cable operators. At issue in this case is the constitutionality of the so-called must-carry provisions, contained in §§ 4 and 5 of the Act, which require cable operators to carry the signals of a specified number of local broadcast television stations. Section 4 requires carriage of "local…