Although in 1992 Congress passed Must Carry legislation, which requires that cable operators dedicate a minimum number of channels to local broadcasters, nearly ten years later legislators are reluctant to extend the same protection to independent ISPs as they have to broadcasters. Several years ago, the court's description may have been accurate. There is simply no reason why the transmission via satellite of identical data should be treated differently if it is transmitted to a television rather than a computer. The Court determined that Must Carry is sufficiently narrowly tailored because without such rules, the vertical integration of cable programmers with cable operators would threaten the existence of free broadcast television. Cable-delivered Internet service, superior to phone line access, is rapidly expanding.
Cable service is a monopoly.
Therefore, if consumers purchase Internet access by subscribing to a cable service that prevents its customers from using an ISP other than its own, then independent ISPs will fair no better than independent broadcasters. If Must Carry rules are in fact content based, rather than content neutral, then they are subject to strict scrutiny, rather than intermediate scrutiny, and thus are likely unconstitutional. If Must Carry legislation is designed to protect broadcasters from the anti-competitive actions of cable operators, and is thus content neutral, then the Court should extend similar protection to independent ISPs, which face a similar threat. If ISPs do not enjoy equivalent protection because Must Carry legislation is designed to preserve free broadcast television for the purpose of preserving the particular benefits of its content, then Must Carry rules are subject to strict scrutiny and likely unconstitutional. The strict bifurcation of these concepts has produced inconsistent regulation that protects broadcasters, but not similarly situated ISPs.