Salvos Continue Over Digital Must-Carry

The exchange of fire over expanded must-carry intensified this week, with the cable lobby going directly to the press while the broadcast lobby returned to the FCC. Meanwhile, parties of both adversarial camps teased regulators through the media by unveiling promising new services they would launch, if a must-carry rul
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The exchange of fire over expanded must-carry intensified this week, with the cable lobby going directly to the press while the broadcast lobby returned to the FCC.
Meanwhile, parties of both adversarial camps teased regulators through the media by unveiling promising new services they would launch, if a must-carry ruling goes their respective ways.

The NCTA called a press conference early in the week to present its legal arguments against expanded must-carry (aka digital or dual must-carry), backed up by a study from Harvard Law School Prof. Laurence Tribe, who was commissioned by the NCTA to do the study. Tribe concluded that expanding the current analog must-carry rule to cover broadcasters' digital signals violated cable operators' First and Fifth Amendment rights, because it would impinge on their editorial freedom as well as constitute government seizure of their property. Tribe's analysis also leaned heavily on the FCC's previous determination that "primary video" meant one channel.

The cable lobby said digital must-carry would not pass the Turner test, from the 1997 Supreme Court case in which Turner Broadcasting Systems sued the FCC to repeal analog must-carry. In a 5-4 decision, the Court ruled that it helped preserve free, over-the-air TV and promoted "widespread dissemination of information from a multiplicity of sources."

NCTA Deputy General Counsel Michael Schooler said, "It's fairly obvious that [digital] must-carry doesn't promote a multiplicity of sources because it's multiple signals from a single source. And there's no reason to think that cable carriage of multiple standard-definition signals would make people go out and buy HDTV sets."

Meanwhile, both ABC and NBC started talking publicly about creating digital services to feed their affiliates for the purpose of multicasting. Networks rarely unveil new products in press leaks, but MSOs have long criticized broadcasters for demanding must-carry for services that didn't exist. Now, as the FCC proceeds toward a ruling on digital must-carry, broadcasters have something tangible to put on the table. NBC was considering a localized weather feed, and ABC pitched a localized news service with its affiliates. Launching those services, however, would be contingent on must-carry, network executives said in the media.

Comcast also cajoled the FCC with potential new services of its own, which could be pushed out if digital must-carry is approved, the MSO said. One of the services involved a remote-control energy management system that would allow homeowners to turn down the thermostat over the Internet, according to published reports.

"Each of these services consumes bandwidth, which is finite, and all of them have significant public benefits," Comcast said in an ex parte letter to the FCC.