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Must-Not Carry

Digital signals orphaned


The FCC washed its hands of must-carry last month--again. After seven years, a court order and nearly 1,300 filings, the FCC reiterated that the current statute covers only one video signal.

The broadcast lobby locked and loaded.

"NAB will be working to overturn today's anti-consumer FCC decision in both the courts and in Congress. We look forward to the fight, because consumers deserve more," said National Associatino of Broadcasters President and CEO Eddie Fritts right after the ruling.

Both multicast and dual digital must-carry were considered in the same order, and both were shot down, 4-1 and 5-0 respectively.

Individual broadcasters, up to their eyeballs in channel selection, were mum on the topic. Some said the ruling would affect their long-term multicasting plans, but most were reluctant to comment because, as one noted, "these are the people who renew our licenses."

Privately, several broadcasters have confided doubts about predicating a business model on must-carry; it was more often viewed as a transitory element for getting new digital services off the ground. As it is, stations across the country are looking at spending an additional $360,000 or so a year to transmit a second signal few households will receive.

Phil Lombardo, president of Citidel Communications, said many small- to mid-market stations would go under without some relief from the expense of running two transmitters.

Currently, stations are allowed to run digital transmitters at less than full power, but that easement comes to an end July 1 for the top four stations in the top 100 markets; and July 1, 2006 for the rest.

Additionally, there's no guarantee that stations can turn off their analog transmitter before a congressionally mandated date, even they may want to. The FCC turned down such a request from KJLA-TV in Ventura, Calif.

KJLA maintained that only .25 of 1 percent of its audience received the station's analog signal over the air, and that it should therefore be allowed to turn it off. The station's analog signal is broadcast from a transmitter east of Ventura; its digital stick is on Mt. Wilson, some 60 miles closer to the heart of Los Angeles.

The FCC Media Bureau responded that .25 of 1 percent of the Los Angeles DMA represented a significant enough number of people to refuse the request, particularly since KJLA does Spanish-language programming. (The Los Angeles DMA comprises 5.4 million TV households, 1.7 million of which are Hispanic, according to Nielsen Media Research figures.)

"You have shown only that the private interests of the station will [be] served, namely, its ability to save money from its analog operation," FCC Media Bureau Chief Ken Ferree wrote in his denial of KJLA's request.

KJLA and other stations that wind up in similar predicaments will have to rely on Congress to set an analog shut-off deadline, which it intends to do this year. Rep. Fred Upton, (R-Mich.), head of the House telecom subcommittee, announced the first DTV hearing of the year just before press time. The hearing, entitled "The Role of Technology in Achieving a Hard Deadline for the DTV Transition" was scheduled for Feb. 17.

Congress could still redefine must-carry, so the war may be far from over. NAB has been all over Capitol Hill in recent weeks, educating lawmakers about spectrum. Several wrote letters to FCC Chairman Michael Powell before the FCC ruling, urging a more broadcaster-friendly approach.

"We believe a ruling required anything less than full carriage of a broadcaster's 6 MHz of spectrum would severely hinder small and independent broadcasters from competing in the marketplace and threaten a diversity of ownership and programming," read one letter signed by 12 legislators.

In the end, Powell was unmoved. He was a commissioner the first time must-carry was defined, and he remained adamant that it pertained to one audio/video signal.

"The Supreme Court upheld the must-carry statute only by a slim 5-4 margin," he said, referring to the court's 1997 ruling on must-carry that applied to analog television. "I believe reading the statute now as expansively as broadcasters urge would likely wither before a First Amendment challenge," he said.

Must-carry survived the Supreme Court challenge in 1997 because it was seen as something that helped preserve free over-the-air television, and that it promoted dissemination of information from a multiplicity of sources. The two Democratic FCC commissioners, who have long called for well-defined public-interest obligations for DTV, said such parameters may have saved multicast must-carry.

"I have consistently maintained that it would be premature to decide multicast carriage without assurance that each programming stream would indeed serve its local community through the imposition of concrete and meaningful public interest requirements," Commissioner Jonathan Adelstein said.

Commissioner Michael Copps concurred.

"I believe that a properly-crafted must-carry decision would be a boon to localism, diversity and competition," he said.

However, it was only the maverick Republican commissioner, Kevin Martin, who dissented on multicast must-carry.

"The Commission made a policy judgment that the benefits of this programming were outweighed by the burden on cable operators. I disagree. I think the public would benefit more from more free programming," he said, noting that video compression technologies would continue to mitigate the bandwidth demand of multicast carriage.

Powell responded that the commission would be on "weak ground" if it expanded must-carry without more legislative support from Capitol Hill.

Robert Sachs, president and CEO of the National Cable and Telecommunications Association, said the vote was "clearly a major victory" for cable. He also said the door remained open for commercial broadcasters to negotiate carriage deals the likes of which the NCTA did with the Association for Public Television Stations. Under that arrangement, public stations get carriage of up to four of their multicast signals.

The APTS/NCTA deal was cited by several commissioners as a fine example of how things ought to be done, but APTS chief John Lawson, nonetheless lamented the denial of expanded must-carry.

"While we are pleased to have secured digital multicast cable carriage for public television stations, we also consider it essential that local stations' digital signals be carried on direct broadcast satellite services, as well emerging platforms," he said.

The satellite lobby was predictably happy with the ruling.