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NCTA cautions FCC not to ‘throw sand’ into gears of DTV transition with new must-carry obligations

The National Cable & Telecommunications Association July 16 filed a strongly worded response opposing an FCC proposal to compel cable operators to carry both the analog and digital must-carry signals of broadcasters upon the Feb. 17, 2009, DTV transition completion.

The comments were in response to the commission’s Second Further Notice of Proposed Rulemaking. That Notice suggests as of the February 2009 transition deadline cable operators would be required to carry station’s digital must-carry signals in analog and digital, including HD, or convert their cable systems to all-digital delivery, provided subscribers have the equipment needed to view the broadcast content.

Such requirements are tantamount to “an unlawful command-and-control approach” taken by the government over the private property of cable operators, the filing said. It uses the DTV transition as a “cloak to disguise a perpetual violation of the Constitution,” it said.

The NCTA said the option of converting all delivery to digital “is effectively no option at all” because it would mean cable subscribers would have to pay for and attach a set-top box to the 126 million analog sets that are estimated to still be in use as of the February 2009 transition. Doing so would cost an estimated $6.3 billion — more than four times greater than the $1.5 billion the federal government has set aside to pay for the set-top boxes over-the-air viewers will need continue using their analog sets post transition.

Thus, the approach that requires cable operators to carry a must-carry broadcaster in both analog and digital “is in effect the only proposed rule,” it said. The NCTA reminded the commission that the FCC has twice before rejected a dual carriage obligation on constitutional grounds, which are “not even hinted at” in the notice.

The commission got it right in 2001, according to the filing, when it decided cable operators would be required to only carry the must-carry digital broadcast signal format and that subscribers would be free to choose to pay for a set-top box needed to watch digital signals on an analog TV. The filing also applauded the FCC’s previous decision that cable operates wouldn’t be compelled to carry all broadcast digital bits but would be free to allocate bits comparable to those devoted to other digital programmers. The Notice “provides no legitimate reason for this about-face,” the filing said.

“The Commission should not throw sand into the gears of this transition by piling new, unnecessary and unconstitutional burdens on cable operators in the last few months leading up to Feb. 17, 2009,” the filing said.

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