Washington-Broadcasters dismissed satellite-industry claims that a law requiring carriage of all local TV stations violates the First Amendment.
In a Aug. 4 filing, the National Association of Broadcasters told the Federal Communications Commission that some satellite-industry arguments were "laughable," and that DBS providers should recognize that access to local TV signals was a gift, not a burden.
The NAB is debating the Satellite Broadcasting & Communications Association, which strongly opposes DBS must-carry and is considering a court challenge on behalf of DirecTV Inc. and EchoStar Communications Corp.
DBS must-carry takes effect Jan. 1, 2002, and requires carriage of all stations in a market where a DBS carrier has elected to provide just one signal.
The FCC has until Nov. 30 to draft DBS must-carry rules. But by law, the agency must enforce "carry-one, carry-all" carriage, making the war of words between the NAB and the SBCA a possible dress rehearsal for a court fight.
The SBCA called must-carry onerous because DirecTV and EchoStar would each have to carry 24 stations in Los Angeles instead of just four network affiliates and a few popular independents. The additional 20 or so stations, the SBCA said, would eat channel capacity that could extend local-TV service into new markets and promote cable competition.
"Because of must-carry, millions of consumers are not going to have the option of local-into-local because must-carry is such a capacity hog," SBCA spokesman James Ashurst said.
The NAB said the law allows DBS carriers to provide local signals without paying copyright fees. In exchange, the law requires carriage of all local signals to protect local broadcasters from unfair competition in which DBS carriers would cherry-pick the most popular stations in a market.
"Rather than restricting any speech, the [law] gives carriers a hugely valuable, but optional, gift: the ability to deliver highly valued local TV programming without negotiating or paying for it. Congress did configure that gift so that its use by satellite carriers would not undermine local broadcasting markets," the NAB added.
The Supreme Court upheld cable must-carry partly because cable operators had the market power to cut off local TV stations from two-thirds of their audience, jeopardizing free broadcasts.
DirecTV and EchoStar only have about 12 million subscribers between them. Still, the NAB said, DBS could inflict that same pain on local TV stations, given the right to distribute only signals from NBC, CBS Corp., ABC Inc. and Fox Broadcasting Co.
"Under a station-by-station license, satellite carriers would effectively remove their subscribers from the potential audience for broadcasters they choose not to carry, posing the risk to free television that Congress has consistently sought to avoid," the NAB added.
The National Cable Television Association has been silent on this must-carry topic after years of inveighing against must-carry as applied to cable operators.
"Our comments addressed the key issue for us, which is [must-carry] parity between cable and DBS," said NCTA spokesman David Beckwith.