Networks once more into the breach on digital multicast "must-carry" fight

Seven weeks after the Federal Communications Commission took the digital multicast television "must carry" question off its agenda, the big TV networks are back at the FCC's door on the contentious issue. Attorneys for CBS, ABC, and NBC filed a 21 page "white paper" with the agency yesterday that argues that the Commission can and must make cable companies run all digital TV signals provided by broadcasters.

"This paper concludes that the Commission has this authority," network lawyers say, "that both Congress and the Commission have repeatedly recognized that the Commission has this authority, and that Congress has repeatedly directed the Commission to exercise its authority for this very purpose."

The FCC had scheduled a vote for June 21st [0] to rule on whether cable companies have to accommodate the wave of new TV channels coming with the analog-to-digital transfer. But at the last minute FCC Chair Kevin Martin took the issue off the meeting's agenda, reportedly because he could not win new commissioner Robert M. McDowell to the pro must-carry side.

Despite this setback, the networks clearly aren't giving up the fight. Their white paper argues that:

The 1992 Cable Act, passed by Congress, required cable companies to carry all of a station's free programming. While the Act gave cable operators the right to turn down leased programs, it ordered "the carriage of all free broadcast television content included within a station's analog signal."
The 1992 law also made cable company cherry picking of broadcaster content unlawful. "Blocking a station's multicast local news channel is, for example, the digital equivalent of blocking a station's local news program from its analog schedule," the paper argues.
Former FCC Commissioners supported multicasting, such as Sherrie Marshall, quoted as saying in 1992 that digital's future lay not in its "crisp picture, but in its potential for spectrum-efficient multiplexing. In my view, broadcasters must become multichannel providers to continue to flourish in the long run."
The Telecommunications Act of 1996 classified multicasts as "advanced television programming," therefore reaffirming Congressional instructions "that the Commission adopt a carriage obligation for these advanced services, if the Commission found such an obligation to be consistent with the public interest."
Refusing to carry all multicast signals will leave broadcasters in a precarious position: "Because cable now competes far more directly against broadcasters for local advertising revenues, cable operators have far greater incentives to thwart the availability of broadcasters' multicast services to the publicâ€” both cable subscribers and non-subscribers."

It is unclear if and when the FCC will revisit the digital must-carry issue. The cable industry fiercely opposes the proposed policy, and will doubtless respond to this latest filing. But network willingness to reaffirm its position just weeks after the cancelled decision indicates that nobody is giving up on this fight any time soon.