Broadcasters, Cable Lobby in Anticipation of New Must-Carry Decision

August 22, 2002
In the wake of the FCC's landmark decision Aug. 8 to phase in a requirement that all new televisions include DTV receivers, the cable industry and broadcasters are squaring off in anticipation of more big decisions on some long-debated topics.

In particular, the FCC indicated it is reconsidering some pivotal points in the DTV transition. FCC Chairman Michael Powell indicated that the cable must-carry rule - now interpreted to mean mandatory cable carriage of the digital or analog (not both) signal of each local broadcaster - is up for review. Broadcasters have long sought carriage of both digital and analog channels during the transition. Also under the gun is the ruling that the broadcasters' "primary" stream that cablers must carry means just one main channel - not the panoply of multicast channels and data services broadcasters can squeeze into their 6 MHz of spectrum.

In a letter dated Aug. 9 to Rep. Ed Markey (D-Mass.), Powell said he'll present a report and order on those issues "in the near future."

With Congress and many lobbyists and bureaucrats out of Washington during August's record string of 90-degree-plus days, it's not clear what Powell meant by the "near future."

But those still in Washington aren't taking any chances and have renewed their lobbying. Tuesday, National Association of Broadcasters staff met with FCC officials, including Media Bureau Chief Ken Ferree and DTV Task Force head Rick Chessen, to discuss the matter. "We emphasized the need for the commission to adopt carriage rules for the DTV context that are clear and practical to implement and enforce in real world situations," the NAB said in a filing about the meeting.

Cable interests aren't sitting on the sidelines. Charter Communications met last week with the staffers of Powell and Commissioners Kathleen Abernathy and Michael Copps to present its version of the issues.

Even before the tuner decision, the cable industry brought a legal heavyweight to their side - Laurence Tribe, a professor of Constitutional Law at Harvard Law School, who said increasing cable's carriage obligations raised First and Fifth Amendment problems.

"Forcing cable operators to carry multiple streams of digital broadcasters would abridge the editorial freedom of cable operators, harm cable programmers and invade the right of audiences to choose what they want to view - all without promoting any of the governmental interests contemplated by Congress in enacting the must-carry rules, or any of the interests approved by the Supreme Court in [previous must-carry decisions] Turner I and Turner II," Tribe told the FCC.

It's not clear whether a new FCC order on the issues would come as early as its Sept. 12 meeting.

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