McDowell Rejection Jilts Multicast Must-Carry
FCC Chmn. Martin’s quest for a multicast must-carry order drew a death blow Sun. when new FCC Comr. McDowell balked at imposing the rules due to constitutional and other concerns, said sources. With no chance in 2006 for Hill action to make cable operators carry all broadcast digital channels, industry executives termed the issue dead for the foreseeable future. McDowell and his aides didn’t comment.
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Some FCC staffers and media activist Andrew Schwartzman were caught off guard by the item’s removal from Wed.’s FCC meeting agenda. Industry executives thought the order had a good chance of passing after Martin delayed the meeting a week to give McDowell time to study the proposal (CD June 9 p7). “I figured Martin would not have noticed the item if he did not figure he was close to a deal,” Schwartzman said: “Martin putting the item on public notice was daring McDowell, in a sense.”
But McDowell feared a cable carriage mandate would violate the Constitution, said industry sources. Lawyers for cable have claimed the rule could run afoul of the First and Fifth Amendments. With Republicans in Congress not pressing him to tackle the contentious order, McDowell had leeway to punt on the issue, said sources. McDowell may favor market approaches over govt. intervention, said a source.
“McDowell just didn’t go for it,” a veteran lawyer said. The FCC announcement removing the multicast must-carry order from the agenda said “there did not appear to be consensus,” without saying why. NCTA lauded the move. NAB will keep pushing Congress to embrace multicast must-carry, it said: “We will continue to educate policymakers on the pro-consumer benefits of multicasting.”
Such lobbying won’t bear fruit near term, said lobbyists and industry sources. One reason is that the Senate Commerce Committee is focused on Chmn. Stevens’ (R-Alaska) telecom bill, said Hill staffers. House Commerce Committee Chmn. Barton (R-Tex.) opposes multicast must-carry -- recalcitrance evident since 1992, when analog must-carry was being debated. Barton’s disaffection will dampen enthusiasm among other House Republicans, said a lobbyist, predicting an “uphill struggle” for the mandate because if Democrats win control of the House they'll push for public interest obligations that don’t sit well with broadcasters.
Some broadcasters weren’t counting on getting a regulatory boost for their multicast streams anyway, they said. Few made major business plans for multicasting because they couldn’t predict the regulatory environment, said industry sources. Other companies never expected digital must-carry to become law, a broadcast executive said: “From our standpoint, this is sort of like a non-event. It would have been nice… but we haven’t seen a real problem dealing with the cable operators.”