Cable operators and programmers strongly oppose on legal and policy grounds proposed federal rules that could furnish certain local TV stations with greater carriage rights on cable systems than they currently possess.
Comcast, Discovery Communications, the National Cable & Telecommunications Association and the American Cable Association all condemned the proposals, rejecting Federal Communications Commission chairman Kevin Martin’s position that new carriage rules were needed to ensure a smooth national switchover to digital broadcasting in February 2009.
Martin’s plan “proposes an unlawful command-and-control approach over the cable operator’s property, using the broadcast digital transition as [a] cloak to disguise a perpetual violation of the Constitution,” the NCTA said in comments filed at the FCC Monday -- the first phase in a battle that could eventually involve the courts and perhaps Congress.
With the congressionally mandated cutoff of analog TV Feb. 17, 2009, Martin is concerned that broadcasters’ new digital signals won’t be seen in millions of cable homes that rely solely on analog reception devices.
His solution: forcing cable to carry TV stations that exercise their mandatory cable-carriage rights in both analog and digital -- a policy known as dual must-carry and something the National Association of Broadcasters has been advocating on and off for nearly one decade. Cable systems that have gone all-digital -- meaning every TV in every subscriber home has the equipment to view digital signals -- would be exempt from the dual-carriage mandate.
Because so few cable operators in terms of subscribers served are expected to be all-digital in early 2009, the industry views dual must-carry as the FCC’s regulatory intent now, even though the agency in 2001 and again in 2005 considered dual must-carry a violation of cable’s First Amendment rights.
Discovery stressed that dual must-carry could make it rethink pending HD investments if FCC policies over allocate cable bandwidth to TV stations.
“The only certain result of forcing cable operators to carry duplicative broadcast channels is to ensure that innovative nonbroadcast programming will be crowded out,” Discovery told the agency.
The NCTA said that in early 2009, about 126 million analog-TV sets will remain in use in cable homes. Supplying a $50 box for each one would cost $6.3 billion.
An FCC policy that effectively leads to dual must-carry could backfire on the agency, perhaps leaving it with no mandatory carriage rules to enforce, Comcast claimed, pointing to market conditions that undermine the need for such mandates.
“Were the [FCC] to proceed with its dual-must-carry proposal, it would invite the courts to re-examine the entire must carry regime,” Comcast said, referring to the 1992 law that allows any full-power TV station to demand cable carriage free-of-charge.