Multicast must-carry won't be voted by the Federal Communications Commission at the agency's public meeting Wednesday in a serious setback to chairman Kevin Martin, who had the agency poised to deal the cable industry one its worst regulatory defeats in more than a decade.
Martin moved the original meeting date from June 15 to June 21 to give new commissioner Robert McDowell, sworn in June 1, additional time to get acquainted with the multicast must carry issue. But it appears that McDowell was unwilling to line up behind his chairman.
"There did not appear to be consensus for moving forward at this time," FCC spokeswoman Tamara Lipper said in a statement issued Sunday.
McDowell's arrival gave Martin his first GOP majority at the FCC since March 2005 -- and it gave TV station members of National Association of Broadcasters hope that they could lick big cable at the FCC after losing multicast must carry battles in 2001 and 2005.
Had Martin kept his same-party commissioners united, he would have prevailed on the issue. Republican FCC member Deborah Taylor Tate was expected to vote with Martin in forcing cable to carry every digital programming service (6 or more services) that a TV station can pack into its bandwidth. Last week, McDowell told lobbyists he was undecided, but some cable and broadcast lobbyists assumed that McDowell would not abandon Martin after Martin gambled by scheduling a public vote.
By putting multicast must carry on the agenda, Martin signaled he had a majority. By pulling it, he showed that McDowell was willing to withhold his support on a crucial matter. Martin has tied multicast must carry to completion of a smooth transition to digital-only TV by the congressionally mandated analog cutoff on Feb. 17, 2009.
Martin's abrupt reversal -- announced Sunday evening, when the FCC was closed for business -- came just days after the NAB had to stomach witnessing President Bush sign a law increasing radio and TV indecency maximum fines ten-fold to $325,000 per offense under a $3 million cap.
In the last few weeks, the NAB had sent waves of TV station executives to see FCC officials; it also filed lengthy legal briefs extolling the virtues of multicast must carry in anticipation of a Martin-led victory.
In rejecting multicast must carry before, the FCC concluded that the carriage mandate would be inconsistent with Supreme Court doctrine in the 1997 case that upheld analog must carry, which assumed one programming service per station.
With gridlock at the FCC, the NAB likely has to turn to Congress to enact a multicast must carry law. But key lawmakers there are divided -- Senate Commerce Committee chairman Ted Stevens (R-Alaska) is for expansion of the must carry rules, but House Energy and Commerce Committee chairman Joe Barton (R-Texas), who voted against the 1992 Cable Act imposing analog must carry, has told Martin that forcing multicast must carry on cable would violate the Communications Act.
NAB spokesman Dennis Wharton denounced the FCC’s decision to pull the multicasting vote from its agenda.
“A multicasting rule would provide an explosion of free local program choices for consumers, including public interest programming. If consumers are to enjoy the full benefits of digital television, cable operators must not be permitted to strip out the full DTV signal for anti-competitive purposes,” Wharton said in a statement Monday. “We appreciate FCC Chairman Martin's steadfast support for more program choice, and we will continue to educate policymakers on the pro-consumer benefits of multicasting.”
Wharton's counterparts at NCTA are pleased with the move. “We’re pleased the Commission has reconsidered its intention to impose multicast must-carry rules. The FCC correctly decided this matter on the two previous instances in which it determined that multicasting mandates would be unwise,” NCTA said in a statement issued Monday. “We believe multicasting mandates are harmful to consumers. And we believe that marketplace and consumer demand - not the government - should determine what programming services are carried.”