The FCC voted 4-1 last week against multicast must-carry, rejecting demands by television broadcasters that cable operators be required to carry more than one of the stations’ primary channels.
Requiring cable systems to carry all the digital channels offered by each local television station would likely violate the First Amendment rights of the cable operators and would probably not survive a court challenge, the majority of the FCC decided.
The ruling means that stations that engage in multicasting additional digital program channels have no right to force those supplemental feeds on their local cable system. Only the primary signal of the broadcaster is subject to must-carry.
However, if the broadcaster produces programming that cable operators deem of sufficient quality, the cable industry and the broadcaster are free to make a deal for cable carriage.
“Cable operators want to carry quality programming and compelling digital content, so if a local broadcaster is offering that and they’re not demanding a fee for that, I think they’ll find very cooperative partners in cable operators,’’ Robert Sachs, president and CEO of the National Cable & Telecommunications Association (NCTA), told reporters after the ruling.
In a second unanimous vote, the FCC refused to force cable operators to carry more than one signal from a broadcaster during the digital transition. Stations wanted both existing analog and new digital signals carried during the move.
FCC commissioners said broadcasters had failed to show that the public interest benefits of cable carrying the extra digital channels outweighed the burdens of telling cable carriers what to air.
The only dissenting commissioner, Republican Kevin Martin, argued the ruling would hurt the smallest stations. “This decision will have the most adverse impact on small, independent, religious, family-friendly, and minority broadcasters,” he said. “We should not be hindering them from investing in new, free programming for their viewers.”
The two Democratic commissioners, Michael Copps and Jonathan Adelstein, voted against the broadcasters, but said the FCC should have also considered guidelines on what public service obligations local stations have when broadcasting multiple digital channels.
Adelstein noted that the failure of the FCC to address public service obligations of broadcasters was a key reason for his no vote. Without that guarantee of public service, he said he was not ready to vote for additional carriage rights.
In another issue related to the DTV transition, Powell, who leaves the FCC next month, told reporters that he would not schedule a vote on an FCC plan that would require broadcasters to complete the move to digital by 2009.
Perhaps, this is because several key members of Congress want broadcasters’ analog spectrum returned to the federal government by the end of 2006 — not 2009 — and have vowed to push legislation through Congress to mandate the return of the spectrum within the next few weeks.