Comcast: Analog Must-Carry No Longer Valid

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Changes in the competitive landscape over the past six years have made it unlikely that the U.S. Supreme Court today would endorse mandatory cable carriage of analog local TV stations, Comcast Corp. claimed in a recent federal filing.

Comcast told the Federal Communications Commission that when the high court upheld analog must carry 5-4 in the 1997 Turner Broadcasting System Inc. case, cable was perceived as a vertically integrated monopoly that posed a threat to local TV stations that were exclusively serving 40 percent of U.S. households with vital news and information.

"Central to the court decision … was the 1992 finding by Congress, which the court accepted, that cable was a monopoly," Comcast said, adding that today, nearly every U.S. household has access to two or three pay TV providers.

"No court today could ignore that competition and the more than 20 million households that now subscribe to direct-broadcast satellite service," the MSO added.

Comcast -- the No.1 MSO, with 21.3 million subscribers -- is fighting, along with the rest of the industry, possible FCC rules requiring cable carriage of broadcasters' analog and digital signals during the transition to all-digital broadcasting and, later on, carriage of multiple digital-programming streams. The FCC is expected to rule by the end of the year.

In an Oct. 16 filing, Comcast told the FCC vertical integration in cable had dropped from a court-cited 64% to effectively 20% today. It also said the argument that must-carry was needed to preserve off-air TV for so many Americans was no longer valid because more than 85% of households are currently pay TV customers.

The MSO concluded that because the main arguments for analog must-carry have been eroded by market realities, new digital-carriage mandates would have a tough time in court.

"The fact that broadcasters' existing must-carry rights are of dubious constitutional legitimacy is relevant only because it helps to underscore that expanded digital must-carry would be difficult to sustain in a constitutional review," Comcast said.

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