Jonathan Adelstein, a Democrat who has served on the Federal Communications Commission for less than a year, is suddenly the likely key vote in this fall's debate on cable carriage of digital broadcast-TV signals.
That can't be all bad for cable. After all, the 41-year-old Adelstein gushes about his cable service — he's a Comcast Corp. subscriber taking high-speed data and the digital programming tier — and happily writes a $160 check each month.
Before Adelstein came aboard as the fifth vote last December, the agency was deadlocked, forcing FCC chairman Michael Powell to shelve the issue.
Last week, Powell said he was ready to proceed.
"We are going to do digital must-carry and we are going to do it this fall," Powell told reporters Wednesday at agency headquarters.
That program note immediately put the spotlight on Adelstein, who becomes both tiebreaker and heartbreaker.
"We understand the position we are in and we have given it a lot of thought," said Johanna Mikes, Adelstein's media policy adviser. Adelstein, she said, has not yet decided how to vote.
Since 1997, when every TV station in the country was loaned without charge a second license for digital transmission, the FCC has struggled with two carriage issues on which the cable and broadcasting industry are bitterly divided.
The first issue is known as dual must-carry, which would require a cable operator to carry the analog and digital signals of any TV station that requests it during the transition.
The transition is supposed to conclude Dec. 31, 2006, or whenever at least 85% of homes in a particular market have digital reception equipment, whichever comes later.
In January 2001, the FCC tentatively held that the bandwidth burdens imposed by dual must-carry to accommodate duplicative programming would violate cable operators' First Amendment rights.
The vote occurred moments before Democratic FCC chairman William Kennard left office. Kennard, in a rare alliance, sided with Republicans Michael Powell and Harold Furchtgott-Roth to scuttle dual must-carry over the objections of Democrats Susan Ness and Gloria Tristani.
Dual carriage unlikely
The current FCC, controlled by three Republicans, is not expected to revive dual must-carry, again because the burdens on cable companies would outweigh the benefits of delivering duplicative signals that might bump cable networks from the dial.
But there's another reason why the FCC is reluctant to back dual must-carry: Fear of rising cable rates. What would millions of cable customers without digital set-tops say to the FCC when their rates shot up because of the forced addition of digital broadcast signals they can't even see?
"People like us would be close to being devastated if dual must-carry came through. And it doesn't appear that it's going to happen, but [we won't know for sure] until we get there," said C-SPAN CEO Brian Lamb, whose organization funds a Web site (www.mustcarry.org) dedicated to the defeat of dual must-carry.
The issue that Adelstein's vote is expected to decide involves mandatory cable carriage of multiple digital broadcast signals after completion of the transition. The idea is that a TV station can use its 6-Megahertz allotment to offer multiple programming services — and cable operators should be forced to carry all of them, instead of just one signal as in the analog world.
Last fall, Republican FCC member Kevin Martin lined up with Democrat Michael Copps in favor of a multicasting mandate against Republicans Powell and Kathleen Abernathy, creating the deadlock that Adelstein is expected to break. (Some sources cautioned that Abernathy is reviewing her position and might become the all-important third vote.)
The National Cable & Telecommunications Association, cable operators and an array of cable networks continue to lobby the FCC that a multicasting mandate not only raises channel-capacity questions, but also questions of fairness.
Namely, why should TV stations be allowed to flood cable systems with dozens of program services by government fiat when cable networks with no off-air access to consumers are required to bargain with MSOs for space on their systems?
"With multiple must-carry, what the broadcasters are saying is that they don't want to have to compete or offer an attractive package. They want an absolute guarantee of channel space. We have no guarantee," said Brian Lockman, president of the Pennsylvania Cable Network (PCN), an MSO-funded nonprofit entity that televises government sessions in Harrisburg to 3 million cable homes.
On the channel-capacity issue, broadcasters say the cable industry is dissembling. With many major cable companies expanding to 750 MHz, advances in compression technology now permit a cable system to reserve 3 MHz of spectrum for a single digital TV station instead of 6 MHz in the analog world.
"NCTA is rehashing the same tired and discredited spectrum scarcity claim that it raised a decade ago when the Supreme Court ruled in favor of analog must-carry for local broadcast stations. The fact is that mandated cable DTV carriage of local broadcast channels would create less of a capacity burden on cable than analog must-carry," said National Association of Broadcasters spokesman Dennis Wharton.
PAX: it's vital
Paxson Communications Corp., owner of 58 local Pax TV stations that air family-friendly shows, claims that a multicast mandate is critical to the survival of free, over-the-air television. Local stations can't compete with cable and DBS unless they can function profitably as multichannel programming providers, Paxson said.
Paxson insists that the FCC could help limit offensive programming on TV by effectively allocating more cable channels to local TV stations.
"The market for DTV television is failing due to the intransigence of cable operators who hoard channels for pay-per-view programming, which mostly consist of R- and X-rated movies," Paxson said in a Sept. 11 FCC filing.
The chief legal issue in the multicasting carriage debate centers on the statutory mandate that cable operators must carry a TV station's "primary video." The FCC held in 2001, after consulting with the American Heritage Dictionary of the English Language, that "primary" in the context of "primary video" meant one signal, not several.
The Association of Public Broadcasters, representing 350 noncommercial TV stations in the multicasting fight, maintained that primary could mean several, as in "primary colors," or have a plural meaning, as in "primary evidence."
PCN's Lockman said he found it galling that public broadcasters were taking the lead on the multicasting issue.
"For many years, they have been promising all sorts of wonderful programming. For 10 years now, we have been doing this thing that they are promising," Lockman said.