Attack of the digital "must-carry" lobbyists

by Matthew Lasar Jun 15 2006 - 11:00pm Satellite and Cable TV

Cable and network television lobbyists are fighting for the last word as the Federal Communications Commission prepares to rule on whether cable companies have to accommodate the wave of new TV channels that will come with the analog-to-digital transfer.

In this corner are NBC, CBS, ABC, the National Association of Broadcasters (NAB), and a host of small outfits who want the FCC to pass a digital "must-carry" rule at their next Open Meeting, scheduled for Wednesday, June 21st.

In that corner are the cable companies and cable associations who insist that they wont be able to handle the volume of new "channels" digital TV stations will offer, thanks to digitals ability to compress data.

A little over a week ago the National Cable and Television Associations (NCTA) CEO Kyle McSlarrow told the FCC in no uncertain terms that digital must-carry is unfair, unworkable, and unconstitutional.

"Guaranteed cable carriage of every multicast stream of every broadcast station - without regard to whether it serves any viewer's needs or interestsâ€”serves no public policy purpose," McSlarrow wrote to FCC Commissioner Deborah Taylor Tate on June 8th. "And it forces cable operators, who spent $100 billion upgrading their facilities in the last decade to provide their customers with the most desirable array of video, voice and data services, to set aside valuable channels for services that may have no appeal at all."

The cable guys argue that:

The FCC has already voted on this issue - twice. Five years ago the Commission resolved that the "must-carry" provisions of the Communications Act did not apply to this issue. The agency voted again last year: four to one against.

"Two bites of the apple are enough," McSlarrow writes. "Even if the issue of multicast must carry were a close call, the need for regulatory certainty and administrative finality should foreclose parties from repeatedly asking for reconsideration until they get the answer they desire."

Even worse, must-carry would violate the First Amendment rights of cable companies.

"It would force cable operators to carry many more distinct channels of broadcast programming," McSlarrow insists, "thereby overriding many more editorial choices, and use up capacity that could otherwise be used for a wide range of services of value to cable customers."

The Communications Act says cable companies must carry the "primary video" of a broadcast station. What part of "primary," asks McSlarrow, dont the TV networks understand?

" . . . if Congress meant to require carriage of all the free video streams offered by a broadcaster," he tells Tate, "it's reasonable to assume that it would have used the term all free video signals instead of the term primary."

McSlarrow also cites the Supreme Courts Turner Broadcasting Cases of the 1990s, which upheld must-carry rules to protect against reductions in service, and to ensure that all households receive a "multiplicity of broadcast programming sources." He argues that that standard has already been met.

The "carriage of additional streams of programming from the same broadcasters would do nothing to promote diversity of over-the-air programming sources," NCTAs McSlarrow says.

Of course the TV networks see it just a little bit differently. Yesterday a small boatload of lawyers for ABC, CBS, and NBC sent the FCC a point-by-point refutation of McSlarrows arguments.

The TV folks argue:

So what if the FCC got it wrong twice? We forgive you. Now is the chance to repent.

"Wisdom too often never comes," they cite Supreme Court Justice Felix Frankfurter as saying, "and so one ought not to reject it merely because it comes late."

The First Amendment case is baloney:

"NCTA's capacity/First Amendment argument focuses on the numerator and ignores radical changes in the denominator," they write. Cable companies can accommodate more channels than ever, even the number of channels coming down the digital pike.

We get the word "primary" just fine.

"It is common knowledge that the adjective primary takes the singular or plural form depending on the context," the TV lawyers retort, "as in the case of three (not one) primary colors and 82 (not one) primary elements in the periodic table."

Cables reluctance on this issue does too run fowl of Turner.

It violates Turners prohibition of a reduction in service, because "existing multicast services will wither away if they continue to be blocked by cable."

So there.

Who else has filed on this issue? Who hasnt? Christian and "family" broadcasters want must-carry, and theyre miffed at House Commerce and Energy Chair Joe Barton (Republican) of Texas, who sides with the cable companies, and who has criticized FCC Chair Kevin Martin for siding with the networks.

"We feel strongly that diversity in programming should encompass a wide range of range of viewpoints, including those aired on our stations," a group called Religious Voices in Broadcasting wrote to the FCC on June 6th. "In the absence of a multicast, must-carry mandate in digital television, our voices will be severely diluted due to the proliferation of channels affiliated with cables horizontal and vertically integrated partners."

Other pro-must-carry filers include an outfit called "Big Idea," a "values based" producer of "the award winning animated series Veggie-Tales," Sandra-Carter Global, a producer of "health and wellness programming," the Alliance for Rural Television, and the ION Media Network, whose filing also announced that it plans to launch "the countrys first 24-hour digital broadcast network dedicated exclusively to consumer healthcare and healthy living."

The FCC will vote on the must-carry question (for the third time, as noted) on Wednesday, June 21st. Changes in media ownership rules and a possible tax on VOiP phone service are also on the agenda.

The meeting will be broadcast on RealAudio, but only to a maximum of 200 simultaneous users.

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