The legal mudslinging between cable and broadcasters continued last week over a matter that is expected to be decided by the Federal Communications Commission in early 2004: Cable carriage of digital broadcast signals.
A new DTV carriage proposal by broadcasters would permit TV stations, for a limited time, to elect must-carry for either the analog or the digital signal, but not for both. But the National Cable & Telecommunications Association told the FCC the proposal was tantamount to carriage of both signals.
The broadcaster proposal was floated by the National Association of Broadcasters and the Association of Maximum Service Television, both leading trade groups for the country's 1,370 local commercial-TV stations.
In a 2,000-word letter last Monday, the NCTA told the FCC that the proposal was a "repackaged" attempt to impose constitutionally suspect carriage mandates on cable.
"No amount of spin can disguise that there's nothing new in this latest NAB/MSTV dual must-carry broadcast scheme," the NCTA's top lawyer, Daniel Brenner, wrote. "Operators would be saddled indefinitely with analog and digital carriage of broadcasters' signals, either immediately or two years hence."
The NCTA said the NAB-MSTV plan was the equivalent of dual carriage, because broadcasters were well aware that cable would not carry DTV signals exclusively while knowing that millions of analog-only homes would lose access until they acquired DTV sets or digital-to-analog converters.
"The vast majority of cable customers continue to rely on analog viewing, and an operator has no realistic option of removing popular broadcast stations from its analog tier," Brenner wrote.
NAB spokesman Dennis Wharton shot back that the NCTA's rejection was designed to block consumer access to DTV signals. Cable operators today carry 304 digital TV stations, about 18% of all commercial stations in the U.S.
"NCTA's rejection of the new 'either-or' DTV carriage proposal from NAB and MSTV is as predictable as it is anti-consumer. With each passing day, it becomes more apparent that the cable gatekeepers will go to any length to block competitive digital and high definition program offerings from local broadcasters," Wharton said.
Under FCC rules, TV stations may not elect mandatory carriage of their digital signal until after they have returned the analog spectrum. But stations are free to negotiate with cable for digital carriage.
In January 2001, the FCC tentatively concluded that dual must-carry during the transition to all-digital broadcasting would impose bandwidth burdens that violated cable's First Amendment editorial rights.
The NAB and MSTV also proposed allowing cable to drop the analog signal as long as the digital signal is viewable in digital homes and in analog homes through downconversion.
But Brenner said this combination would require cable operators to set-aside more channel capacity than necessary to accommodate redundant broadcast signals.
"Thus, this plan can hardly be characterized as reducing the burdens that would be imposed by a dual-carriage requirement; it differs not at all from the standpoint of its impact on cable-system capacity," Brenner wrote.
FCC chairman Michael Powell hoped to deal with DTV carriage issues in December, but the agency got sidetracked. Early next year, the agency is expected to rule again on dual must-carry and on whether, after the transition, cable has to carry multiple programming services provided by a single TV station.