Washington— 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 and affirmed in 2005, according to FCC and industry sources.
Under Martin’s proposal, if a digital-TV station demands cable carriage, the operator would be required to carry every free programming service the station transmitted. Digital technology permits stations to segment bandwidth to expand beyond a single programming service.
FCC rules today require carriage of just one programming service per must-carry station. The majority of TV stations negotiate carriage, but a company like ION Media Networks (formerly Paxson Communications Corp.) depends on must-carry requirements for cable distribution of its 60 stations. ION has spent years lobbying the FCC for multicast must-carry mandates.
1992: Must-carry included in Cable Act.
1997: Supreme Court votes 5-4 to affirm must-carry after Ted Turner’s Turner Broadcasting System Inc. sued the Federal Communications Commission.
1998: FCC launches digital must-carry rulemaking.
2001: FCC tentatively rejects dual must-carry during DTV transition and rejects multicast must carry after it. Broadcasters seek reconsideration.
2005: A month before Martin becomes chairman, FCC affirms dual-carriage ban in a 5-0 vote and multicast ruling in a 4-1 vote, with Martin dissenting. Broadcasters seek reconsideration.
Martin’s expansion of the must-carry rules after the shutdown of analog TV — something he’s advocated without success for five years — will likely trigger a court battle with cable.
“The FCC already has twice rejected a multicasting mandate, and no new evidence has been presented that justifies a different result,” said National Cable & Telecommunications Association spokesman Brian Dietz.
Cable took the original must-carry law, adopted in 1992, all the way to the Supreme Court but lost in a 5-4 ruling. Two justices, one from the majority, one from the dissent, have left the court since the 1997 decision in Turner Broadcasting System v. FCC.
MEETING JUNE 15
Martin, who circulated the item on May 25, 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.
“We’re encouraged by reports that chairman Martin supports revisiting an issue that, if adopted, will bring more program choice to cable customers,” NAB spokesman Dennis Wharton said.
The Senate confirmed communications attorney Robert McDowell to serve at the FCC on May 26, giving Republicans a 3-2 majority for the first time in Martin’s tenure as chairman and perhaps providing the key vote for him to prevail.
Although McDowell and FCC Republican Deborah Taylor Tate have not staked out public positions on the issue, FCC Democrats Michael Copps and Jonathan Adelstein have refused to endorse multicast must-carry in the absence of rules that would force 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.
Federal law entitles every full-power commercial and noncommercial TV station to cable carriage, as long as the set-aside does not exceed one-third of a cable system’s channel capacity. The U.S. has 1,371 commercial and 381 noncommercial stations. Noncommercial stations may elect only must-carry, but commercial stations may either elect must-carry or bargain for cable carriage.
The debate at the FCC has centered on a cable system’s legal requirement to carry a TV station’s “primary video.” The NCTA has argued that “primary” means one, while broadcasters have called for a broader interpretation in which the word primary has a plural connotation, as in the phrase “primary colors.”
In Turner, the Supreme Court ruling involved the analog distribution of one programming service per must carry TV station. No court has ruled on the constitutionality of multicast must-carry in the digital context.
Digital-TV stations can offer one or two HD signals and perhaps five or six programming services within their 6-Megahertz channel assignment. About 700 TV stations have launched multicast services, according to the NAB.
Because multicasting would take up no more than the 6 MHz of cable capacity needed by an analog TV signal, NAB has claimed that multicast must-carry is constitutional under Turner. NAB has even argued that the cable burden would likely shrink owing to digital compression.
In many FCC filings, the NCTA has argued that a determination that multicast must-carry is constitutional simply because TV stations would not need additional cable bandwidth was incorrect.
“What matters is whether the intrusion of multicast carriage obligations on a cable operator’s editorial discretion and the discriminatory effects on non-broadcast program networks are no greater than necessary to advance the statutory purposes of the must carry provisions,” the NCTA said in an FCC filing last May
Last February, a month before Martin became chairman, the FCC affirmed the 2001 ruling, finding that multicast must-carry rules would impose First Amendment burdens on cable without advancing the important governmental interests of preserving of free, over-the-air local TV and the transition to digital TV.
“I believe that reading the statute now as expansively as broadcasters urge would likely wither before a First Amendment challenge,” then-FCC chairman Michael Powell said.
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.