Must-carry rules set

As of Feb. 17, 2009, all U.S. TV stations are expected to cease broadcasting in analog and commence digital-only operations. For viewers with digital tuners and cable customers subscribing to digital cable service, this changeover should not be a problem.

For the 40 million households that subscribe to analog-only cable service, things could be different. Lacking the necessary equipment to decode DTV signals, many of these viewers will be reliant on their cable companies to provide a viewable signal.

With this in mind, the FCC adopted rules that will help ensure cable subscribers can still watch their local TV stations after the DTV transition. Until now, there were no rules mandating how digital broadcast signals would be provided to analog-only subscribers.

The new rules will require cable operators to provide the digital signal of local TV stations to their analog subscribers in an analog format. Alternatively, the signals may be provided in just the digital format, but only if all subscribers have the necessary equipment to view digital signals. The FCC also affirmed that cable operators must carry HD broadcast signals without material degradation.

Viewability requirement

The new rules do not mandate dual carriage as many broadcasters had urged. Rather, they are based on the Communications Act's requirement that cable operators deliver local broadcast signals in a manner that is viewable by all subscribers. To meet this viewability requirement, cable operators can either:

  1. Ensure that all of their subscribers have the necessary equipment to view digital signals by providing digital set-top boxes, or
  2. Downconvert broadcasters' digital signals into analog for their analog subscribers. Digital subscribers would still receive the digital signal.

Effect on small operators

The FCC did not adopt an exception for small cable operators, as some in the cable industry wanted. Instead, systems with channel capacities of 552MHz or less may request waivers of the new rules based on an economic hardship.

The new rules affect only those stations being carried pursuant to the FCC's must-carry rules. Stations that elected to negotiate for retransmission consent will continue to operate under the terms of their retransmission consent agreements. In addition, the new rules have an expiration date of three years after the transition date, with the expectation that the FCC will revisit the continued need for the rules by 2011.

At the same time, the FCC reaffirmed that cable systems must carry HDTV signals in the HDTV format, consistent with the current standards prohibiting material degradation of broadcast signals. The FCC did not, however, adopt a “carry all the bits” requirement sought by some broadcasters. Rather, cable operators may use compression technology to preserve bandwidth as long as it does not materially degrade the broadcast signal. In addition, the picture quality of such signals must remain at least as good as the quality of any other programming carried on the system.

Industry reaction

The FCC's decision drew predictable responses. The NAB agreed with the decision, saying the ruling was a particular boon to viewers of Spanish language and religious stations, many of which rely on must carry to reach viewers. The American Cable Association, which represents small cable operators, disagreed. It predicted that some small operators would have to shut down due to the burdensome requirements. The NCTA, which represents many large cable operators, had previously announced a voluntary plan for dual carriage, so it was more sanguine about the decision. Still, the NCTA urged the FCC to “act quickly” to provide relief to “very small systems.”

Harry C. Martin is past president of the Federal Communications Bar Association and a member of Fletcher, Heald and Hildreth PLC.


  • December 1 is the deadline by which TV stations in Colorado, Minnesota, Montana, North Dakota and South Dakota must file their biennial ownership reports with the FCC.
  • December 1 also is the deadline for TV and Class A stations in the following states and territories to place their annual EEO reports in their public files and post them on their Web sites: Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont.
  • Feb. 17, 2009, is the DTV transition date when all analog broadcasts, except by translators, LPTV and Class A stations, must cease.

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