Forum: Lamb Lobbies Against Digital Must-Carry

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The following are excerpts from a statement by Brian P.
Lamb, chairman and CEO of C-SPAN, before the Senate Committee on Commerce, Science and
Transportation July 8.

I am here to deliver a simple and, I hope, a clear message
to this committee and to Congress: If "must-carry" status is granted to
digital-broadcast signals, the C-SPAN networks and, most important, the American people
who watch the Senate and the House of Representatives on television will be harmed.

And that harm can be avoided simply by letting the free
market work in the digital era to let consumers determine which programmers earn channels
on cable systems.

Since 1993, our public-service efforts have been, and
continue to be, a victim of the must-carry rule. They will be victimized once again unless
Congress and the Federal Communications Commission take a deep breath and think through
the consequences of applying the old rules to the new digital world.

As we sit here in 1998, the C-SPAN networks bear the scars
of the must-carry rule. As a direct result of the many provisions of the 1992 Cable Act,
C-SPAN and C-SPAN 2 were either dropped entirely or cut back to part-time carriage in
nearly 10 million households, as scarce channel space was taken up by government-imposed
preferences for broadcasters and other programmers.

Of those nearly 10 million households that lost some or all
of the C-SPAN networks, nearly 5 million suffered that loss as a direct result of the
must-carry rule and retransmission consent.

For five years, we expended a lot of energy and a good
portion of our nonprofit resources to combat the effects of the 1992 Act. Thanks to that
hard work and to the cable industry's broad commitment to our public-service efforts,
we were able to restore carriage in many communities.

Yet at the same time, we gained subscribers as the industry
grew. We added cable-system affiliates, and we attracted a wider audience. But there are
still more than 1 million households across the country with less access to our networks
as a result of just the must-carry rule than we had before the 1992 Act.

Six weeks ago, I told C-SPAN's must-carry story in a
letter to the members of this committee, to the House Communications Committee and to the
Congressional leadership. A week later, I received a letter from the National Association
of Broadcasters that said, in effect, that our numbers just don't add up, that we
really don't have that much to complain about and, by the way, that we ought to be
more careful about what we tell Congress. In my view, the NAB and others have missed the
point completely.

Let me respond by saying that this is not a numbers game.

The lawyers and the lobbyists can try to minimize the
damage to our public-service efforts by citing overall carriage growth, and so forth. But
in doing so, they miss the fundamental point: There are thousands of real people who
watch, vote, write, think and care about their country who continue to have less
television access to their government today than before the 1992 Act, no matter how many
more subscribers we may have gained since.

My concern is for them and for the incalculable number of
Americans whom we were denied the chance of ever reaching due to the 1992 Act and, more
particularly, due to the must-carry rule and retransmission consent.

That concern is deepened by the certainty that we will lose
millions more households that now receive our programming, and that we will be prevented
from reaching additional households as the cable and broadcast industries enter the
digital age -- that is, if digital must-carry becomes law.

A final response is really in anticipation of those who
would have you believe that our complaint is not with a digital must-carry rule, but with
the cable industry.

The cable industry created our networks, even though it was
not urged to or ordered by the government to do so. Cable operators pay license fees to
support our public-affairs programs and educational projects because the C-SPAN networks
are good for their customers and good for their country. And they do it on a nonprofit
basis, without making money for themselves or for anybody else. They are providing
precisely the kinds of programs that the government has been nearly begging licensed
broadcasters to provide, and the cable operators do it without the governmental sword of a
statutory "public-service obligation."

Yet they have been confronted with legislation that has
made it very difficult for them to provide us with maximum distribution. Our complaint is
that we are at the tail end of a domino effect created by the law.

Cable systems are forced to dedicate one channel after
another to satisfy national government mandates, even after fulfilling local obligations.
By the time a cable operator satisfies the requirements of must-carry (including carriage
of all-day home shopping stations), retransmission-consent, leased-access and PEG-access
(public, educational and government) programming, for example, there are that many fewer
channels for C-SPAN, C-SPAN 2, or any other programmer, regardless of the public-service
benefit to the audience, or even the commercial benefit to the cable operator.

On top of that, the rate-regulation provisions of the 1992
Act put the C-SPAN networks at a decided disadvantage against the many other cable
programmers that actually make money for the cable systems that carry them.

Must-carry and retransmission consent are closely linked in
this set of dominos. They are impossible to separate, particularly when the last domino
falls and a cable operator is forced to make a programming decision. In any single case
where carriage of C-SPAN or C-SPAN 2 is dropped or cut back, several "plausible"
explanations unrelated to must-carry or retransmission consent may be offered by outsiders
-- and such explanations have been offered, usually to muddy the debate in which we are
now engaged. The plain fact is that when the must-carry/retransmission-consent domino
became law, C-SPAN 2's steady growth came to a standstill overnight, and it lost any
chance of catching up to C-SPAN's much wider distribution.

Clearly, history teaches us that we have good reason to be
concerned if must-carry status is granted to the digital signals that local broadcasters
will soon be transmitting. But this time around, the harm to the C-SPAN networks and to
other programmers is certain to be much greater than what we have experienced so far.

Not only will it cut off millions more Americans from
direct access to the Senate and House debates and our event coverage, but it will continue
the erosion of our First Amendment rights that began with the 1992 Cable Act. A digital
must-carry rule will solidify our position among a whole class of programmers that must
stand second in line to every holder of a broadcast license in every community in the
country.

Despite our vigorous First Amendment challenge to the
analog-era must-carry rule, a closely divided Supreme Court supported it. The digital era
will bring an entirely different set of facts, with a vastly different and greater effect
on satellite-delivered programmers, if the old must-carry rule is simply tacked onto the
new regime. If it is, the C-SPAN networks will be first in line to once again challenge
the infringement of our free-speech rights.

Fortunately, there is still time for everyone involved in
the move toward digital television to avoid that particular battle. As you will no doubt
hear from other witnesses, there is a lot about this technology that is simply unknown,
even to the so-called experts.

For that reason alone, Congress and the FCC should slow
down the fast track that we are all on. For our part, the C-SPAN networks prefer to trust
the free market to solve most of the emerging digital-television problems, just as the
cable industry did when it created us. The government would do well by taking the same
approach.

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