NAB to Fight FCC Rejection of Multicast Must-Carry

The NAB said it would work to overturn the FCC’s decision that cable systems don’t have to carry all broadcast TV digital signals. “NAB will be working to overturn today’s anti-consumer FCC decision in both the courts and in Congress. We look forward to the fight,” NAB Pres. Edward Fritts said in a statement.

While the NAB weighs its next move, lawyers familiar with the situation said broadcasters are likely to focus their efforts first on getting changes pushed in the DTV transition bill. “They face an uphill battle in going to court,” said a lawyer familiar with must-carry proceedings. “They would have to argue that the Commission’s interpretation of the statute is wrong and then defend it,” he said. But the FCC interpretation gets judicial deference, he added.

The FCC affirmed its earlier conclusion in a 4-1 vote, declining to require cable systems to carry more than one programming stream of a DTV station. Broadcasters said cable should be required to carry up to 6 DTV signals instead of one after the DTV transition. The must-carry statute says cable must carry a broadcaster’s primary video, and broadcasters say that includes all their video streams. Although the Commission said the operative statutory language at issue is ambiguous on the subject, it also said such a requirement isn’t necessary to further the purposes of must-carry statute, as defined by the U.S. Supreme Court. “Must- carry unquestionably imposes a First Amendment burden on cable providers. I believe reading the statute now as expansively as broadcasters urge would likely wither before a First Amendment challenge,” FCC Chmn. Powell said.

The Commission also unanimously affirmed its tentative conclusion not to impose a dual carriage requirement on cable operators, which would have required them to simultaneously carry broadcasters’ analog and digital signals. Comr. Abernathy said the Commission “lacks authority to mandate either dual carriage or multicast carriage.”

FCC’s challenge is to craft some balance on the issue, Comr. Copps said, but he said cable shouldn’t “have the burden to carry every camera hanging out of a window or the home shopping programs or all those infomercials masquerading as real programs.”

Broadcasters offered no guarantee the additional streams in a multicast must-carry mandate would be used in the public interest, Comr. Adelstein said. “Having no assurance that true local service will materialize on each new digital program stream, I am not prepared to conclude as a legal or policy matter that Congress intended carriage of these streams,” he said. Adelstein did applaud recent efforts between the NCTA and public TV on national digital carriage for the digital transition (CD Feb 2 p5). Similar discussions between the NAB and NCTA have been futile. Adelstein also praised increased efforts by several broadcasters, including Belo, Young Bcstg., NBC and ABC to provide local programming. “But as a Commission, we cannot just consider these broadcasters. We also must be concerned with assuring that every broadcaster will meet a baseline public interest standard,” he said.

Adelstein, in a lengthy comment, said recent events validate claims that broadcasters’ news coverage has been increasingly devoid of information to help citizens participate in their democracy, “or worse yet, promoting an ideology or unbalanced political agenda thinly disguised as journalism.” He cited the fact that Sinclair Bcst. refused to air ABC’s Nightline tribute to U.S. soldiers killed in Iraq, and later instructed its 62 TV stations to preempt programming to air a documentary highly critical of presidential candidate John Kerry. Although Sinclair broadcast a modified program, Paxson, which sells much of its non-prime air time for paid programming, quietly broadcast the documentary in its entirety 10 times the weekend before the Presidential election, Adelstein said.

Adelstein also lashed out at NAB’s laments that more disclosure and accountability is an impediment to the journalistic discretion of broadcasters -- “apparently discounting that they hold their licenses as stewards of the public interest.” NAB suggested that a requirement to air a certain amount of local programming would face constitutional problems, Adelstein said, yet it argued exactly the opposite in its petition to have the Commission restrict the local programming of satellite radio providers. “If NAB claims banning local content is constitutionally permissible, surely requiring local content could also be,” he said.

Comr. Martin disagreed with the Commission’s decision, saying the public would benefit more from additional free programming. The record is replete with examples of the free programming services broadcasters want to provide or expand, including local news, local weather, local sports, coverage of local elections and govt. proceedings and foreign language programming, he said. “Yet, with carriage rights for only one stream, these broadcasters cannot support all of this additional programming,” Martin said. Compression technology and dramatically expanded cable capacity means it wouldn’t be a burden on cable operators to carry multicast channels, he said. Network stations and most large-market broadcast affiliates are likely to get their signals carried through retransmission consent; must-carry was never about these large broadcasters, he said: “Must carry was designed for these smaller broadcasters that in the past have been unable to negotiate with large cable operators.” The Commission’s decision will have an adverse impact on small, independent, religious, family-friendly and minority broadcasters, Martin said.

It would have been better if the Commission completed its public interest and localism rulemakings to determine multicasting’s role, Capitol Bcstg. said: “After that, a multicasting decision would have been based on sounder public policy.”

Cable called the decision a major victory. “The FCC’s rulings make clear that carriage of additional digital broadcast signals should be determined in the marketplace,” said NCTA Pres. Robert Sachs: “The fact that two different FCCs have reached the same conclusions regarding broadcasters’ digital carriage rights will enable Congress to move forward now to address other issues concerning the digital TV transition.”

“This is a fair and reasonable decision that is right on constitutional grounds and right for consumers,” said Comcast CEO Brian Roberts. Satellite operators also were pleased with the decision. “DirecTV is pleased the FCC has reaffirmed the decision it made 4 years ago to deny a dual must-carry mandate as unconstitutional,” said DirecTV Pres. Mitch Stern: “This is the right legal decision, but more importantly, it is the right policy decision as millions of American consumers will benefit from a diverse array of programming choices.”

The Satellite Bcstg. & Communications Assn. (SBCA) agreed. It had argued that mandatory carriage of both analog and digital signals and multiple versions of a broadcasters’ digital stream would create capacity constraints for satellite TV.

Smaller cable operators also hailed the decision, saying it would allow them to invest in the programming their customers want to watch. Prior to the FCC’s decision, the American Cable Assn. (ACA) provided the FCC with detailed information regarding the bandwidth and technical requirements necessary to carry multiple broadcast digital signals by independent, smaller market cable operators.

“This is truly a free-market solution,” said ACA Pres. Matt Polka. “If the programming is valuable to the local market and is offered to the cable operator at reasonable terms, the additional programming being offered by TV stations will have the opportunity for carriage.”

Some producers of specialized, niche programming welcomed the decision because they believe market forces will be a better arbiter of quality programming than a decision forcing cable operators to carry programming they might not otherwise choose, said TV One Pres. Johnathan Rodgers.