Two recent proposals by the FCC would open the door to significantly increased carriage obligations for cable operators as of the February 2009 DTV transition date. In addition, the proposals would increase carriage opportunities for broadcasters and independent programmers.
In one proposal, cable operators would be required to carry local TV stations in both analog and digital modes after the digital transition. In a second proposal, independent programmers would obtain must-carry rights on cable systems by leasing spare multicast digital streams from local TV stations. Both proposals have drawn widespread interest from broadcasters and condemnation from cable operators.
Under current rules, cable operators are required to carry only the analog signals of local TV broadcasters. TV stations' digital signals have no must-carry rights unless the station is already operating all-digital, and, even then, only a single, primary programming stream is entitled to mandatory carriage.
The first proposal addresses the question of how digital-only TV stations will be made viewable by analog cable subscribers after the transition. The proposal would require cable systems that have not converted to an all-digital system to carry local TV signals on both their analog and digital tiers to ensure that analog cable subscribers can continue to receive service. Alternatively, the cable operator could carry the digital signal only, but provide analog customers the converters necessary to view the signals.
Supporters of the plan argue that without a dual-carriage requirement, cable subscribers that lack a digital cable box or a DTV cable-ready television could lose access to local broadcast stations.
Cable operators, however, oppose the plan, arguing that the proposed requirement would effectively force subscribers to rent digital set-top boxes they might not want. Smaller cable systems also expressed concern that they will not have the capacity to offer broadcast stations in both analog and digital formats without sacrificing other programming.
The dual-carriage proposal is advocated by FCC Chairman Kevin Martin, who has the reputation of being tough on the cable industry. Conversely, Commissioner Jonathan Adelstein noted that the FCC previously rejected dual-carriage proposals and called for a more complete public vetting before proceeding with the plan.
In addition, Commissioner Robert McDowell suggested that, at this stage in the process, building a more complete record regarding marketplace solutions would have been preferable to putting forward specific proposals. McDowell also questioned whether the FCC possesses the authority to require dual carriage. Commissioner Michael Copps' statements on the proposal were generally positive.
Carriage of leased digital channels
With respect to the multicast proposal, Martin wants independent programmers to be allowed to lease multicast digital streams from local TV stations. In return for complying with many of the same public interest obligations imposed on commercial TV stations, the independent programmers would have the right to require local cable operators to carry their programming.
Martin is promoting the plan as a way to increase media diversity by giving minorities, women and small business a way to obtain the exposure provided by cable carriage without the high costs of full TV ownership.
Martin suggested that programmers would need to meet certain eligibility criteria to quality. The other FCC commissioners have voiced tentative but positive reactions to the plan.
Let the debating begin
While neither the multicast proposal nor the dual carriage proposal is certain to be adopted, the debate the new proposals will engender will add a new dimension to the ongoing DTV transition.
Harry C. Martin is a past president of the Federal Communications Bar Association and a member of Fletcher, Heald and Hildreth PLC.
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