Martin Unveils New Must-Carry Plan

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Washington -- In a regulatory challenge to the cable industry, Federal Communications Commission chairman Kevin Martin is seeking new federal rules that would expand cable operators’ obligations to carry TV-station programming.

Martin’s proposal, which surfaced in the media about one month ago, was sent to the other four FCC members Monday night. Martin first wants the agency to seek public comment on his plan, which could lead to the adoption of rules in about one year.

Because the cable industry has fought mandatory TV-carriage rights for decades, cable operators and programmers are likely to wage a strong fight to frustrate Martin’s design.

“The notion of forced carriage on cable systems is something we are not in favor of and never have been, and I don’t know how this proposal can be squared with the law that has evolved around the whole mandatory carriage idea,” Diane Burstein, vice president and deputy general counsel of the National Cable & Telecommunications Association, said Tuesday at the Cable Television Public Affairs Association’s Forum 2007 here.

TV stations won mandatory carriage rights on cable systems in the 1992 Cable Act. Under a 1999 law, satellite-TV providers need to carry all local TV stations in a market if they elect to carry any.

Cable operators currently need to carry just one programming service from a TV station that has elected mandatory carriage. Under Martin’s plan, the quota could rise to three or four programming services per station.

According to FCC aides and published reports, Martin’s plan calls for allowing TV stations to lease surplus digital-TV spectrum to FCC-approved entities -- most likely small businesses and nonprofit organizations. Lessees would have mandatory cable-carriage rights.

Because digital technology allows a TV station to split its signal to create three or four individual programming services, Martin is hoping TV stations will consider earning revenue by leasing excess capacity. But the decision to lease spectrum is expected to be voluntary on the part of TV stations.

The National Association of Broadcasters has not endorsed Martin's proposal.

In 1997, the Supreme Court voted 5-4 in Turner Broadcasting System v. FCCto uphold the cable must-carry law. One year later, TV stations began lobbying the FCC to widen the rules by imposing “multicast must-carry,” which would force cable systems to carry every digital-programming stream a station could pack into this 6-megahertz channel.

But a Democratic-controlled FCC rejected multicast must-carry in 2001. In 2005, a GOP-controlled FCC did so for the second time, over Martin’s objections just one month before he became chairman. Last June, Martin tried to adopt a multicast must-carry rule. But he pulled it back after FCC Republican commissioner Robert McDowell, just weeks into his new job, refused to back Martin.

Martin has indicated that his plan would promote programming diversity by allowing new voices “to get their programming on the air without incurring the cost of owning and building a station,” said Cristina Pauzé, McDowell’s legal adviser on media issues.

But Burstein responded that cable “is all about diversity and obviously provides diversity of programming already on cable systems.”

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