Cable Can Sue Now Over Dual Must-Carry

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Cable operators and programmers can go ahead and fight the Federal Communications Commission in court over the agency’s new rules that force double distribution of some TV stations by their local cable system. 

The ability to sue was triggered procedurally Friday when the FCC’s rules, adopted last September, were printed in the Federal Register. The time from FCC adoption to publication in the Federal Register spanned 143 days.

The National Cable & Telecommunications Association isn’t planning to launch a legal challenge. Instead, it will lobby the FCC to issue a broad exemption for small systems, a move FCC chairman Kevin Martin has opposed because he believes small operators’ capacity crunch is being exaggerated. 

“NCTA doesn’t intend to file an appeal of the order; however, we urge the commission to quickly approve a blanket exemption for small cable systems that do not have the capacity for dual carriage,” Brian Dietz, NCTA’s vice president of communications, said in a statement Friday.

NCTA’s stance wouldn’t stop its individual members from suing. Without NCTA’s support, Comcast Corp. and Cablevision Systems Corp. have taken the FCC to court to overturn the agency’s five-year extension of the cable program access rules.

Starting in February 2009, the FCC is going to require cable systems to carry every so-called must carry TV station (those that don’t bargain for carriage) in both analog and digital formats for at least three years.

All-digital cable systems are exempt from the dual carriage mandate, but because so few cable systems have reclaimed their analog bandwidth, the exemption is virtually meaningless.

FCC chairman Kevin Martin rejects calling the rules “dual carriage.” He calls them “viewability” rules, arguing that the exemption for all-digital systems proves that no dual-carriage requirement is being imposed.

Martin’s analysis underwent a market test of sorts a few weeks ago when Comcast tried to give every analog-only customer in Michigan a free digital set-top box for one year to ensure that public, educational and governmental (PEG) channels would be viewable on analog TV sets.

Local governments rebelled, complained to House Energy and Commerce Committee chairman John Dingell (D-Mich.) and finally got a federal judge to enjoin Comcast from proceeding.

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