Forcing cable systems to carry every digital service beamed by local TV stations would face “insurmountable” legal hurdles, Comcast Corp. told federal regulators last week amid signs that action on the hot-button multicasting issue could occur by the end of the year.
Broadcasters are seeking rules from the Federal Communications Commission that would require cable systems to carry their analog and digital signals during the transition, also called dual must-carry.
After the transition, when analog service has ceased, TV stations that use their digital spectrum to beam five or six programming services want cable carriage for all services they provide over-the-air viewers free-of-charge.
Comcast and other leading cable companies are opposed to dual-carriage and multicasting mandates, arguing that the law requires carriage of a single programming service and that anything more would not only be contrary to communications law, but violations of the First and Fifth Amendments.
“For reasons that Comcast has previously set forth at some length in this proceeding, even existing analog must-carry requirements are of dubious constitutional legitimacy under present circumstances, and the challenges of justifying dual- and multicast-carriage requirements are insurmountable,” Comcast said in an Oct. 4 FCC meeting.
Comcast representative James Coltharp and outside counsel James Casserly explained their position in a meeting with several FCC officials, including Media Bureau chief Kenneth Ferree.
In a recent interview, Ferree told Multichannel News his staff would recommend cable carriage of all free multicast services provided by each TV station that elects mandatory carriage of its digital signal after the surrender of analog spectrum.
Ferree said his staff has concluded that the FCC’s ruling that TV stations were entitled to carriage of a single programming service was incorrect and that law permits an interpretation of the 1992 Cable Act that would support a multicast-carriage mandate.
FCC sources have said that the agency is planning to vote on the multicasting issue in November or December. Pending Senate legislation would require the commission to issue final rules by the end of the year.
In its FCC filing, Comcast attempted to rebut Ferree’s position that cable law is sufficiently elastic to support a multicast requirement.
“This is not a proceeding in which the [FCC] has unfettered discretion to choose among competing policy considerations,” the MSO said. “Fundamental constitutional principles are at stake.”
Comcast added that a multicast mandate would frustrate its ability to select programming services most desired by subscribers. The MSO also noted that it is seeking technology that would allow it to reallocate surplus bandwidth that becomes available when digital-TV stations alternate between HDTV and less-bit-intensive standard-definition formats.
“Thus, to be denied this flexibility by the [FCC], through a rule that requires the carriage of multiple program streams for a single broadcaster, would represent an even greater intrusion on the editorial discretion and the reasonable investment-backed expectations of the cable operator than a rule that requires the carriage of a single HDTV programming stream per broadcaster,” Comcast said.