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New must-carry rules

With the Feb. 17, 2009, digital TV transition date approaching, the FCC recently adopted rules designed to ensure that cable subscribers who receive analog-only service can continue to view the signals of must-carry local broadcast stations after the transition. These new rules do not apply to broadcast stations carried pursuant to retransmission consent.

Viewability provision

The Communications Act requires cable operators to transmit the signals of must-carry stations without material degradation. In its new rules, the FCC interprets this viewability provision to require cable operators to either:

  • continue providing an analog tier, but downconvert the digital signal of must-carry stations into analog format, or
  • only provide digital service, transmit the signal of must-carry stations in the digital format, but ensure that all subscribers (including those with analog TVs) have the necessary equipment to view the broadcast content.

After the DTV transition next year, cable operators will be responsible for the costs of any downconversion of DTV must-carry broadcast signals, though they may charge subscribers for the purchase or rental of set-top boxes necessary for analog TV sets to receive digital signals. The FCC also retained the current requirement that HD must-carry broadcast signals be carried in HD, along with the current requirement that such broadcast signals not be materially degraded by the cable operator.

While the commission did not define such prohibited material degradation, it specifically declined to require cable operators to pass all digital data in the broadcast signal.

The intent is to give cable operators the flexibility to use digital compression, as long as the average viewer experiences the picture quality at least as good as the quality of any other programming carried on the system. In addition, the FCC is requiring cable operators to notify subscribers if they switch to an all-digital system.

These viewability requirements extend to Feb. 17, 2012, and the commission will review them during the last year of this period in light of the state of technology and the marketplace. During this transition, small cable systems with an activated channel capacity of 552MHz or less may request a waiver of the viewability requirements.

Other issues on the FCC's plate

The commission is also seeking comment in a further notice of proposed rulemaking on several issues, including:

  • how channel positioning rules should apply to operators carrying both the analog and digital versions of a station's signal;
  • how to properly adjust downconverted signals to different aspect ratios (16:9 to 4:3);
  • whether material degradation rules should apply to stations carried pursuant to retransmission consent as well as must-carry; and
  • additional ways to minimize any economic impact on small cable operators while still complying with the statutory requirements for carriage of local TV stations.

The viewability requirements are being perceived as a dual-carriage requirement by many in the cable industry, and some cable programmers have already filed suit in federal court seeking to overturn the new rules.

Harry C. Martin is a past president of the Federal Communications Bar Association and a member of Fletcher, Heald and Hildreth, PLC.


  • June 2 is the deadline for TV stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming to file their biennial ownership reports.
  • In the following jurisdictions, June 2 also is the deadline for TV, Class A and LPTV stations that originate programming to place their annual EEO reports in their public files and place them on their Web sites: Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, Washington, D.C., West Virginia and Wyoming.
  • On June 2, TV stations with more than 10 full-time employees in Maryland, Virginia, Washington, D.C., and West Virginia must electronically file their broadcast EEO midterm reports (Form 397) with the FCC.

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