FCC Staff: No Dual Must Carry

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Senior Federal Communications Commission officials said Monday that TV
stations seeking analog and digital carriage on cable systems need to assemble
convincing evidence before the FCC will use its authority to require dual
carriage.

The FCC officials said the need for empirical data to justify dual carriage
was critical because the courts would end up backing the cable industry if the
record underpinning the mandate were based on unsupported conjecture about
cable's anti-competitive conduct.

'What the commission is interested in doing is building the right case,' said
Jane Mago, the FCC's acting general counsel. 'You know this is going to go to
the courts. You know we've got to be able to fully defend it.'

In January, the agency ruled that cable operators did not have to carry
digital signals until TV stations surrendered their analog licenses. Further,
the FCC said, digital-TV stations were entitled to carriage of their primary
digital signals, ruling out mandatory carriage of multiple digital signals.

Mago, speaking to a group of state members of the National Association of
Broadcasters, said the FCC disagreed with the NAB that the 1992 Cable Act
contained a dual-carriage mandate for the agency to mechanically implement.

Instead, she indicated that the FCC believed dual carriage was a matter of
administrative discretion.

Mago's message didn't sit well with broadcasters in the audience, many of
which are spending millions of dollars to outfit stations to provide
digital-television programming that viewers can't see off-air until they buy
digital-TV receivers.

Roy Stewart, chief of the FCC's Mass Media Bureau, told the same audience
that if the FCC had imposed dual must-carry in January, the courts would have
sided with the cable industry.
Both Mago and Stewart noted that the FCC
agreed to launch a new rulemaking inviting broadcasters to establish a record on
the need for dual carriage. The agency also asked cable operators for
information on their channel capacity to allow it to calculate the burden of
dual carriage.

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