NAB Fights FCC’s Decision on Multicast Must-Carry

The FCC affirmed its earlier conclusion in a 4-1 vote and declined to require cable operators to carry any more than one programming stream of a digital TV station. Broadcasters pushed that after the digital transition cable operators should be required to carry up to 6 DTV signals instead of one. The must-carry stature limits the video signal that must be carried to the primary video. The view urged by broadcasters is that primary video includes all their video streams. Although the Commission found that the operative statutory language at issue is ambiguous on the subject, it also found on the current record, that such a requirement is not necessary to further the purposes of must carry statute, as defined by the U.S. Supreme Court. “Must-carry unquestionably imposes a First Amendment burden on cable providers. I believe reading the statute now as expansively as broadcasters urge would likely wither before a First Amendment challenge,” FCC Chmn. Powell said.

The Commission also unanimously affirmed its tentative conclusion not to impose a dual carriage requirement on cable operators, which would have required them to simultaneously carry broadcasters’ analog and digital signals. Comr. Abernathy said the Commission “lacks authority to mandate either dual carriage or multicast carriage.”

FCC’s challenge is to craft some balance on the issue, Comr. Copps said. But he didn’t believe cable should “have the burden to carry every camera hanging out of a window or the home shopping programs or all those infomercials masquerading as real programs.”

Broadcasters offered no guarantee that the additional streams from a multicast must-carry mandate would be used in the public interest, Comr. Adelstein said. “Having no assurance that true local service will materialize on each new digital program stream, I am not prepared to conclude as a legal or policy matter that Congress intended carriage of these streams,” he said. Adelstein did applaud recent efforts between the NCTA and public TV on national digital carriage for the digital transition. Similar discussions between the NAB and NCTA have been futile. Adelstein also praised efforts by several broadcasters, including Belo, Young Bcstg., NBC and ABC for increased efforts in local programming. “But as a Commission, we cannot just consider these broadcasters. We also must be concerned with assuring that every broadcaster will meet a baseline public interest standard,” he said.

Adelstein, in a lengthy comment, said recent events validate claims that broadcasters’ news coverage has been increasingly devoid of information to help citizens participate in their democracy, “or worse yet, promoting an ideology or unbalanced political agenda thinly disguised as journalism.” He cited Sinclair Bcstg.’s refusal to air ABC’s Nightline tribute to U.S. soldiers killed in Iraq, but then instructed 62 TV stations to preempt programming to air a politically-charged documentary Stolen Honor: Wounds That Never Heal. Although Sinclair broadcast a modified program,, Paxson, which sells much of its non-prime air time for paid programming, quietly broadcast the documentary in its entirety 10 times the weekend before the Presidential election, Adelstein said.

Adelstein also lashed out at NAB’s laments that more disclosure and accountability is impediment to the journalistic discretion of broadcasters -- “apparently discounting that they hold their licenses as stewards of the public interest.” NAB even suggests that a requirement to air a certain amount of local programming would face constitutional problems. Yet it argued exactly the opposite in its petition to have the Commission restrict the local programming of satellite radio providers, Adelstein said. “If NAB claims banning local content is constitutionally permissible, surely requiring local content could also be,” he said.

Comr., Martin, disagreed with the Commission’s decision and said the public would benefit more from additional free programming. The record is replete with examples of the free programming services broadcasters want to provide or expand, including local news, local weather, local sports, coverage of local elections and govt. proceedings and foreign language programming. “Yet, with carriage rights for only one stream, these broadcasters cannot support all of this additional programming,” Martin said. Compression technology and dramatically expanded cable capacity wouldn’t put a burden on cable operators to carry these multicasted channels, he said. Network stations and most large-market broadcast affiliates are likely to get their signals carried through retransmission consent; must-carry was never about these large broadcasters, he said. “Must carry was designed for these smaller broadcasters that in the past have been unable to negotiate with large cable operators.” The Commission’s decision will have an adverse impact on small, independent, religious, family-friendly and minority broadcasters, Martin said.

A better outcome of the decision would have resulted if the Commission completed its public interest and localism rulemakings to determine multicasting’s role, Capitol Bcstg. said. “After that, a multicasting decision would have been based on sounder public policy.”

Meanwhile, the cable industry called the decision a major victory. “The FCC’s rulings make clear that carriage of additional digital broadcast signals should be determined in the marketplace,” said NCTA President Robert Sachs. “The fact that 2 different FCCs have reached the same conclusions regarding broadcasters’ digital carriage rights will enable Congress to move forward now to address other issues concerning the digital TV transition,” he said.

“This is a fair and reasonable decision that is right on constitutional grounds and right for consumers,” said Comcast CEO Brian Roberts. Satellite operators also were pleased with the decision. “DirecTV is pleased the FCC has reaffirmed the decision it made 4 years ago to deny a dual must-carry mandate as unconstitutional,” said DirecTV Pres. Mitch Stern. “This is the right legal decision, but more importantly, it is the right policy decision as millions of American consumers will benefit from a diverse array of programming choices.”

The Satellite Bcstg. and Communications Assn. (SBCA) agreed. SBCA had argued that mandatory carriage of both analog and digital signals and multiple versions of a broadcasters’ analog stream would create capacity constraints for satellite TV.

Smaller cable operators also hailed the decision, saying that it would allow them to invest in the programming their customers want to watch. Prior to the FCC’s decision, ACA provided the FCC with detailed information regarding the bandwidth and technical requirements necessary to carry multiple broadcast digital signals by independent, smaller market cable operators.

“This is truly a free-market solution,” said ACA President Matt Polka. “If the programming is valuable to the local market and is offered to the cable operator at reasonable terms, the additional programming being offered by TV stations will have the opportunity for carriage.

Some producers of specialized, niche programming welcomed the decision because they feel that market forces will operate as a better arbiter of quality programming than a decision forcing cable operators to carry programming they might not otherwise choose, said TV One President Johnathan Rodgers.