Cable operators would need to comply with so-called multicast-must-carry rules in a proposal sponsored by Federal Communications Commission chairman Kevin Martin that would reverse agency policy established in 2001, according to FCC and industry sources.
Under Martin’s proposal, if a digital-TV station demands cable carriage of multiple programming streams, the cable operator would be required to carry them. Existing FCC rules require cable carriage of just one programming service per must-carry station.
Martin, who circulated the item last Thursday, is hoping to pass the rules at the agency’s June 15 public meeting in Washington, D.C., an FCC source said. The agency won’t release the meeting agenda until June 8.
Last Friday, the Senate confirmed Robert McDowell to serve at the FCC, giving Republicans a 3-2 majority for the first time in Martin’s tenure as chairman and perhaps providing him with the margin necessary to prevail.
Since joining the FCC in July 2001, Martin has been an outspoken advocate of multicast must-carry. McDowell and FCC Republican Deborah Taylor Tate have not staked out public positions. FCC Democrats Michael Copps and Jonathan Adelstein have refused to endorse multicast must-carry without rules forcing TV stations to air more public-interest programming.
In April, Martin said he wouldn’t raise the issue if it couldn’t pass.
“I would bring it up if there was a majority of the commission who wanted to end up addressing it. If there’s not a majority, then I wouldn’t,” he told reporters in Las Vegas following remarks to the National Association of Broadcasters convention there.
Federal law entitles every full-power commercial and noncommercial TV station to cable carriage so long as the set-aside does not exceed one-third of a cable system’s channel capacity. The independent affiliates of ABC, CBS, NBC and Fox generally don’t elect must-carry, opting instead to negotiate cable carriage.
In 1997, the Supreme Court voted 5-4 to uphold must-carry under the First Amendment in the context of an analog distribution system that assumed one programming service per station. No court has ruled on the constitutionality of multicast must-carry in the digital context.
Digital-TV stations have the capability to divide their bandwidth and provide five or six programming services. Led by the NAB, TV stations have urged the FCC to expand the must-carry requirement to include all digital-TV signals that consumers can view over-the-air free-of-charge.
The FCC rejected the idea in February 2005 in a 4-1 vote, affirming the same decision in 2001. The agency found that multicasting mandates would impose a First Amendment burden on cable without advancing important governmental interests, such as the preservation of free, over-the-air local TV or advancement of the digital-TV transition.
“I believe that reading the statute now as expansively as broadcasters urge would likely wither before a First Amendment challenge,” said then-FCC chairman Michael Powell
Martin, the lone dissenter, disagreed, saying that the burden of digital must-carry would be “significantly less” than analog must-carry due to compression technology. Cable, he added, would not have to set aside more than one-third of its channel capacity for must-carry obligations.
“The burden on cable capacity … is capped by statute, a cap that has been upheld by the Supreme Court,” Martin said.
If the FCC adopts rules under Martin, cable operators and programmers are highly likely to wage a court battle by arguing that multicast must-carry would violate First Amendment freedoms and take private property without just compensation under the Fifth Amendment.
"The FCC already has twice rejected a multicasting mandate, and no new evidence has been presented that justifies a different result. In fact, working directly with local broadcasters, cable operators have added hundreds of digital-broadcast channels to their lineups nationwide and have effectively implemented a privately negotiated agreement with public television to ensure broad carriage of digital public TV stations across the country,” National Cable & Telecommunications Association spokesman Brian Dietz said.