Taking on the country’s top media regulator, leading free-market organizations want the federal government to refrain from expanding the number of local broadcast-TV signals that cable operators are forced to carry.
The call for restraint came from a range of organizations broadly hostile to government regulation, including Americans for Tax Reform, the American Conservative Union and the National Taxpayers Union.
The groups are troubled that Federal Communications Commission chairman Kevin Martin wants to adopt new carriage rules that would force cable operators to forfeit channel capacity to local TV stations without compensation.
NO 'FREE RIDE’
“To give broadcasters a free ride on cable operators’ private infrastructure would represent the worst sort of government mandate, and would fly in the face of the property rights protections found in the Constitution,” the groups said in an Oct. 19 letter to Martin and others in the FCC’s leadership.
Martin supports a concept called multicast must-carry. With digital technology, TV stations can fill a single 6-MHz channel with up to three, four or five programming services, compared to just one using traditional analog transmission.
Current FCC rules require carriage of just one programming service, but Martin wants to change the rules to require distribution of every free programming service that a particular TV station transmits for free to its over-the-air audience.
“Cable operators should be required to carry this free programming. In regulatory lingo this is called 'multicast must-carry,’ ” Martin said in a recent speech. To date, Martin has failed to attract majority support at the five-member agency, controlled by three Republicans.
In 2001 and 2005, the FCC voted against multicast must-carry, concerned that the courts might find that more forced cable carriage would run afoul of the First Amendment. Since the 2005 vote, the National Cable & Telecommunications Association has emphasized Fifth Amendment concerns about multicast must-carry.
In their FCC letter, the free-market groups stressed that multicast must carry could effect a taking of private property without just compensation, violating Fifth Amendment protections of property owners.
“A multicast must-carry requirement could increase the amount of property seized from cable providers by six times or more, with no just compensation from broadcasters — a likely violation of the takings clause of the Constitution,” the free-market groups said.
Thirteen groups in all signed the letter to the FCC. Other signatories were the Competitive Enterprise Institute, the Property Rights Alliance and Americans for Prosperity.
In 1992, Congress passed a law that said that if commercial TV stations didn’t want to bargain for cable carriage, they could demand carriage, with no money permitted to flow from or to the station.
In 1997, the U.S. Supreme Court affirmed the must-carry law as it stood at that time, meaning carriage of one programming service per must-carry station.
Martin has said he thinks his proposed rules would be consistent with 1997 Supreme Court case.
INCENTIVE TO INVEST
Martin believes multicast must-carry would give TV stations an incentive to beam multiple programming services. And he believes broadcast-only viewers would more readily invest in converter boxes and digital-TV sets if they were getting more free programming.
But without cable carriage, “there simply is not an economic model by which a broadcaster can support a free programming stream that reaches only over-the-air households,” Martin said.
The cable industry, by contrast, maintains TV stations would not have an incentive to generate high-quality content if they knew that whatever they aired was assured cable carriage.