NAB and MSTV filed a reply in support of their petition for reconsideration of the Commission's Second Report and Order. In the petition for reconsideration, NAB and MSTV argued the FCC should not have excluded carriage of DTV programming (multicast) other than one primary program from its cable must-carry rules. NAB and MSTV said that none of the oppositions to its petition filed by cable operators and programmers "rehabilitate the critical flaws in the Second Report and Order that compel reconsideration here."
The reply from NAB and MSTV listed these critical flaws:
- The Second Report and Order, like the First Report and Order, provides no explanation for why the Cable Act does not require carriage of all the signals of local commercial television stations during the transition--both digital and analog;
- The Second Report and Order improperly applied strict scrutiny, rather than the intermediate scrutiny that the Commission acknowledges is appropriate, by repeatedly considering whether transitional and multicast carriage rules are "necessary" or "essential" to the promotion of governmental interests;
- The Second Report and Order erroneously found that neither transitional nor multicast carriage furthered the important governmental interests recognized in Turner--promoting the benefits of free, over-the-air local television and ensuring diverse broadcast programming--as well as other important governmental interests, such as advancing the digital transition and freeing spectrum for vital public safety services, that the Commission may properly consider;
- The Second Report and Order failed to consider the extent to which the rapid growth of cable capacity in recent years has rendered negligible any burden that must-carry imposes on cable operators. The plans of large operators to simulcast all programs in digital and analog put to rest its cable capacity claims.
See the NAB/MSTV reply in support of their petition for reconsideration of the Commission's Second Report and Order for more detail on these arguments.