NAB Testing New Multicast Legal Theory

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A federal mandate requiring digital-only broadcasting in 2009 is a new and important governmental interest that justifies the need to broaden the digital-TV-carriage obligations of cable operators, the National Association of Broadcasters argued in a legal analysis recently submitted to the Federal Communications Commission.

The NAB’s reliance on the 2009 “hard date” bringing analog TV to an abrupt halt represented a novel legal argument in the trade group’s eight-year quest to require cable operators to carry a requesting digital-TV station’s entire signal, whether that’s one HD service or 6-12 multicast services. Today, cable is required to carry one program service of each station that elects mandatory carriage.

In February, President Bush signed a law that requires TV stations to surrender their analog licenses no later than Feb. 17, 2009, and to transmit only in digital. The law set aside $990 million-$1.5 billion to fund digital-to-analog converter boxes for millions of consumer with outdated analog-TV sets.

FCC chairman Kevin Martin is trying to round up support to adopt multicast-must-carry rules at the agency’s June 15 public meeting. If Martin is successful, the FCC is expected to highlight the analog cutoff as an important new policy in support of its legal position that multicast must-carry is permissible under the First Amendment, an FCC source said Tuesday.

The connection between the end of analog TV and the need for so-called multicast must-carry was spelled out in a 34-page white paper in which the NAB explained at length the constitutional bases for modifying cable-carriage requirements for digital-TV stations.

Many of the NAB’s legal arguments had been aired before. But its decision to make a connection between the analog cutoff and the constitutionality of multicast must-carry was a new approach from the NAB.

“There is yet another -- and entirely new -- important government interest here: promoting the swift transition to digital television,” the NAB said in the June 2 filing.

A successful digital-TV transition as articulated by the FCC, the NAB added, involved plying consumers with copious amounts of digital content, including HD and multicast services.

“Broadcasters have responded through their efforts to develop and offer multistream broadcasting to viewers,” the NAB said. “Consequently, an FCC requirement that ensures that multicasts reach the vast cable audience certainly would promote an important governmental interest.”

In February 2005, the FCC declined for the second time to impose multicast must-carry on cable, insisting that broadcasters had failed to demonstrate, as required by Supreme Court precedent, that expanded cable carriage would “preserve the benefits of free, over-the-air broadcast television” or “promote the widespread dissemination of information from a multiplicity of sources.”

In a court challenge, the cable industry would likely argue that the FCC’s rules were unjustified because within the space of 16 months in which market realities had not dramatically changed, the FCC went from saying that multicast must-carry didn’t meet Supreme Court standards to saying that it did.

The NAB’s introduction of the hard date as new and important development ordered by Congress could give the FCC the necessary legal support to explain convincingly the need to impose multicast must carry after refusing twice to do so.

“Extending must-carry rules to multicasting advances both of these clearly established interests [free TV and access to multiple sources of information], as well as interest in fair competition in the video-programming market,” the NAB said. “In addition, carriage rights for multistream broadcasting further the more recent government interest in transitioning from analog to digital delivery of programming.”

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