The FCC finally has addressed issues that had been pending for more than four years regarding the obligations of cable systems to carry DTV signals.
The results are not good for broadcasters. The FCC decided that cable operators are not required to carry multicasting or provide dual carriage.
In its January 2001 DTV Must-Carry Report and Order, the FCC found that the statutory requirement that cable providers carry only the “primary” video of a broadcast signal meant that stations were entitled to carriage of only one digital programming stream, rather than all or multiple streams. The commission reaffirmed this conclusion in its February 2005 order.
While it recognized that there is some ambiguity over what Congress might have meant by the term “primary video,” the commission concluded that Congress' language implies that some programming is “secondary,” and thus not entitled to must-carry. Although the term “secondary” might have been intended to refer to digital services such as Internet access or data transmission, the FCC appears to have concluded that these non-video services are better described as “ancillary” services, which do not qualify for must-carry. That would leave multiple video programming streams as “secondary.”
The commission also recognized that First Amendment considerations limited its ability to read the term “primary” expansively and, pursuant to that expansive reading, to enact requirements that the cable industry assert significantly burden cable operators' free speech rights to program their systems as they please.
The Supreme Court's 1997 Turner decision upheld the constitutionality of a single analog must-carry requirement by a narrow 5-4 vote, based on “substantial evidence” in the record that absence of an analog must-carry requirement would lead to such substantial financial hardship on stations that free over-the-air service to the public would suffer as stations died.
The FCC concluded that a dual carriage requirement would violate the First Amendment rights of cable operators. Some broadcasters had hoped that the Communications Act's mandate that the FCC promote the DTV transition might overcome the FCC's other concerns. Addressing that argument, Chairman Powell noted that the FCC had taken many other actions designed to promote the DTV transition, including giving broadcasters a second channel during the transition and mandating the manufacture of digital TV tuners. According to the commissioners, even if requiring dual carriage would promote the transition, the FCC did not have the authority to do so under the First Amendment.
Of course, even though broadcasters do not have mandatory rights to multicasting and dual carriage, that does not mean that they are barred from negotiating for some or all of those rights with cable operators on an individual basis. The commissioners pointed to such agreements.
It particularly noted the recent agreement between the cable TV industry and the Association of Public Television Stations and PBS, under which cable operators will voluntarily carry up to four streams of non-commercial digital programming streams from one public TV station in each market, along with that station's analog signal. Many cable operators have expressed an interest in obtaining locally oriented programming for their growing digital tiers, including local news and sports channels.
Broadcasters will have an opportunity to obtain voluntary digital carriage in the context of retransmission consent negotiations that will occur this year, leading up to the carriage election deadline of October 1.
Harry C. Martin is president of the Federal Communications Bar Association and a member of Fletcher, Heald and Hildreth PLC, Arlington, VA.
June 1 is the deadline for TV, TV translator and LPTV stations in Michigan and Ohio to file their renewal applications, biennial ownership reports and EEO program reports.
June 1 also is the deadline for TV stations in Illinois and Wisconsin to begin broadcasting their renewal prefiling announcements.
Network affiliates in top-100 markets must build out their full DTV facilities by July 1 or lose interference protection beyond the coverage areas of their actual facilities as of that date.
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