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FCC Takes Up Dual Must-Carry

The FCC is exploring how cable subscribers will continue receiving broadcast signals once analog transmitters are shut down the night of Feb. 17, 2009.

The commission on Thursday opened a Second Notice of Proposed Rulemaking on dual must-carry, a regulatory structure that would require cable operators to carry digital and analog versions of broadcast signals, if necessary. About half of the nation's nearly 65 million cable households receive analog-only service, many without a set-top box. Once broadcast television becomes all digital, those signals would have to be converted somewhere along the cable distribution chain for analog reception.

Cable operators want to convert at the headends that serve multiple households, rather than within each individual household. Broadcasters want either household conversion or dual must-carry, because headend conversion could result in a degraded signal for subscribers with expensive hi-def TV sets.

According to the FCC press release on the as-yet unreleased notice, the commission proposes that cable operators must either: "(1) Carry the signals of all must-carry stations in an analog format to all analog cable subscribers, or (2) for all-digital systems, carry those signals only in digital format, provided that all subscribers have the necessary equipment to view the broadcast content."

The commission said it also "reaffirmed that cable systems must carry high-definition broadcast signals in HD format."

The notice further seeks comment on whether must-carry should encompass a broadcaster's entire 19 Mbps payload, or just the primary channel, as the FCC previously determined. Commissioner Michael Copps said the full payload proposal had "some appeal." He likewise assessed a parallel nondiscrimination proposal holding that cable and broadcast programming be treated the same.

Commissioner Robert McDowell said he would have preferred an examination of marketplace solutions over proposed regulations.

"I have questions about the possible statutory and constitutional implications involved in this proposed endeavor, particularly with respect to mandating carriage of a broadcast signal in both analog and digital formats," he said in his statement for the record.

The cable lobby said it also preferred marketplace solutions. The National Association of Cable and Telecommunications said the proposal represented "a completely unnecessary government intrusion," and that it was "unconstitutional, as the FCC itself decided in 2001 and 2005."

FCC Chairman Kevin Martin has been questioned about "picking on cable" in recent months because of his support for expanded must-carry, a la carte channel pricing and a cable ownership cap. Cable friends Reps. Joe Barton (R-Texas) and Fred Upton (R-Mich.) delivered a letter to Martin earlier this week asking him to back off the cable regs.

"We are disturbed that with respect to the cable industry, you appear to be making proposals that are leading the commission down the road of intrusive regulation when it is least justified," the letter stated.

After the vote, Upton and Barton issued a statement saying a dual-carriage requirement is unnecessary.

"Cable operators have every incentive to ensure their subscribers continue to get the programming they want," it said.