BROADCASTERS TRY TO FIGHT OFF PUBLIC INTEREST OBLIGATIONS

With the fight over carriage centered on multicasting, broadcasters are concerned that demands by 2 FCC commissioners for public interest obligations could infringe on their First Amendment rights. In meetings at the FCC, NAB officials have said it would be good policy for the Commission to require cable to carry “all free bits” in local broadcasters’ DTV signals. They also said it would be “constitutional folly” to tie DTV cable carriage rules to public interest obligations or apply them to particular types of programming. Such requirements could render the rules “content-based,” which would violate the First Amendment, they said.

All this comes as FCC Comr. Copps, with Comr. Adelstein’s support, has called for the Commission to set public interest obligations on broadcasters, making that part of the calculus in deciding whether broadcasters should get multicasting carriage rights on cable and satellite services. Copps has shown a particular interest in requiring news and public affairs programming, as well as a certain amount of children’s programming. Among the questions he would like answered is whether broadcasters should be required to have such programming on a single channel or on all multicast streams.

Some public interest groups have seized on Copps’s comments and have been lobbying on the issue. Center for Digital Democracy Exec. Dir. Jeff Chester met recently with Chmn. Powell’s legal adviser, telling him there should be a rulemaking on the broadcasters’ public interest obligations before carriage rights were decided. “The networks and the broadcasting industry must provide commensurate public service if they are to receive what surely will be one of the biggest ‘giveaways’ via publicly conveyed policy,” Chester said. He said he didn’t believe the courts would uphold multicasting carriage rights without evidence of additional service obligations to the public.

Officials of Media Access Project and the New America Foundation also have told FCC officials that they “must extract” public interest obligations from broadcasters that in some way are “enhanced” by the DTV transition. Specifically, MAP called for increased obligations for children’s programming, local programming, free time for political candidates and increased public file obligations.

Comcast Cable has stressed that the FCC shouldn’t infringe on cable operators’ free speech and free press rights “on the basis of conjecture about the extent to which broadcasters will be able to secure cable carriage… absent governmental compulsion or speculation about the deterioration or demise of free over-the-air broadcasting if such carriage is not secured for some or all of the nonprimary program streams that broadcasters transmit over the public airwaves.” The cable industry’s argument in general is that broadcasters should be on a level playing field -- airwave license holders or not -- as any other channel seeking carriage and should negotiate as such.

Broadcasters, meanwhile, say part of this issue -- and another reason the FCC should give them multicasting carriage -- is that cable is trying to stop in its tracks the rise of a rejuvenated competitor in the form of local broadcasters. The FCC commissioners should support the broadcasters in this, an NAB spokesman said, because if there is to truly be a new viable competitor, broadcasters need the economic incentive of reaching most eyeballs. Asked whether it would be feasible for broadcasters simply to start transmitting such new services over the air without guaranteed carriage, the NAB spokesman said ad-supported streams of programming wouldn’t get off the ground if 80% of the U.S. audience, meaning those on cable and satellite, couldn’t see those services.

The hope is that some day more consumers will choose to see over-the-air digital broadcast as a true alternative to cable and satellite, the NAB spokesman said, but until then, ad-supported programming needs a large audience to survive. He pointed to a recent FCC filing by DIC Entertainment, which said it would like to start a new digital children’s network, but only if the FCC instituted multicasting must-carry. The company said it supplied children’s educational programming to 400 TV stations, helping them fulfill their current children’s programming requirements from the FCC.

On the issue of public interest requirements, NAB said it was urging broadcasters to make voluntary commitments of public service, as opposed to a govt. mandate. Having the govt. or FCC write a certain percentage of a certain type of programming, or quota, into rules or law wouldn’t stand up to court scrutiny, the NAB said. “It becomes content-based regulation, which is the kiss of death. It would be thrown out in a heartbeat by the Supreme Court,” he said.