Martin Says DTV a Top Priority; Other Media Items Pending

Tighter congressional oversight of the transition -- and the cutoff’s Feb. 17, 2009, deadline -- foreshadow a year for Martin and colleagues heavy with discussion of it on the Hill and in other forums, said industry lawyers. “The biggest item without question has to be the completion of the DTV transition,” said attorney Henry Rivera.

For the transition to succeed, government and industry must excite consumer awareness, agreed lawyers including Richard Wiley, who headed the committee responsible for the DTV standard. “Both the government and the private sector have to continue to work hard to get the word out,” said Wiley. It’s too soon to predict the path of NTIA’s $1.5 billion digital converter box coupon program, but that agency seems to be doing a good job, he said: “We've got to give that program a chance to work.” The first days of NTIA’s program, which began Jan. 1, saw hundreds of thousands of coupon requests, but some callers to 888-DTV-2009 had problems requesting them on behalf of relatives or were hung up on CD Jan 3 p2). “I think it’s being handled in an intelligent manner and in good faith,” said Wiley.

The FCC will spend $2.5 million recently budgeted to it by Congress for DTV on consumer education and may run public service announcements, said Martin. The agency will work “directly with industry” in that area, he added, praising business efforts as “extremely aggressive.” Martin circulated an order last year requiring broadcasters to air DTV spots and making pay-TV companies insert information in bill-stuffers. Some commissioners expressed skepticism internally that such an order was needed and about its constitutionality. Martin wouldn’t handicap the odds of the order’s being released soon.

After a 2007 in which Martin impelled the FCC to tackle many divisive media issues, 2008 likely will see FCC emphasis return to telecommunications, another industry lawyer said. “He did a big push at year end to address the media issues he deemed urgent… So we're taking a little breather there.” The 700 MHz auction will be a major 2008 theme, said cable consultant Steve Effros. Another, meshing broadcast and telecom, will be whether to let high-tech companies use the so-called white spaces between DTV channels for unlicensed, portable broadband devices, lawyers have said (CD Jan 2 p1).

Several lawyers expect the FCC to spend considerable time on lawsuits related to 2007 rulemakings, especially a Dec. 18 3-2 vote to relax cross-ownership rules. A 1975 ban on common ownership of a TV or radio station and a newspaper in the same market “is a broadly outdated rule that needed to be changed,” said Wiley, who chaired the FCC then. He predicts that cross-ownership deregulation will be upheld in court. Martin defended the 18-month review that led to the cross-ownership order. “The process was very fair to all of the different parties involved,” he told reporters. The new rules are “a reflection of the comments that we had gotten and the public sentiment that was expressed at many of the hearings.”

Indecency litigation may shape commission policy on that topic, said Wiley and Rivera. Communications lawyers await a ruling by the 3rd U.S. Appeals Court in Philadelphia. That body heard oral argument Sept. 11 in CBS’s appeal of a $550,000 fine for Janet Jackson’s Super Bowl breast-baring. FCC policy also will be affected by the Supreme Court’s ruling on an FCC appeal of a lower court remand of agency policy of fining TV stations for airing a show that contains a curse -- if the high court takes the case, said Wiley. “It is hard to believe there won’t be any indecency regulations,” he said. “The question is the extent of it.” Martin acknowledged the effect of lawsuits on enforcement of indecency rules. “Pending litigation has impacted our ability to take action on a whole host of issues,” he said.

In 2008 Martin likely will continue to push for cable a la carte, which he supports out of concern over indecent content and rising cable bills, said Rivera and others. “Kevin obviously continues to be very interested in a la carte, and I think indecency is high on his list,” said Rivera. Coming rulemakings will offer Martin opportunities in to argue for sale of individual channels, industry lawyers said. “I don’t see anything down the pipeline, but he’s a creative fellow and he likes this and he may make an opportunity for himself,” said Rivera. Martin may find an entree into the topic of a la carte in the FCC’s channel tying rulemaking, with reply comments due Jan. 22, said industry lawyers.

A localism rulemaking could be 2008’s most controversial FCC broadcast issue, said regulatory attorneys. The FCC wants public comment on whether to require TV stations to convene meetings of community groups and take other steps to ensure they're covering local news. Many industry lawyers regard some of the rulemaking’s proposals a step back for the FCC, since some of the rules were voided years ago. “That’s probably going to be pretty contentious,” said Rivera, a 1980s-era commissioner. “You have some initial lines already drawn between the Ds and the Rs. I guess it will be along party lines” if Martin seeks a vote. Martin is believed to support such rules. “Are we going to return to the broadcast regulations of the past?” said Wiley. “That’s the question.”

Industry officials don’t know how Martin will address two-way cable plug and play rules, now that he has put off circulation of an order on the FCC’s eighth floor, scarcely addressing the subject at the Consumer Electronics Show, they said. Wiley said the consumer electronics and cable industries did “a very commendable job” devising one-way technology, but called two-way standards “complex.” Complexity may have figured in the delay in promulgating a two-way plug and play order, Effros said. “The commission is now finding out what industry has found out, which is this is not simple,” he said. FCC action is “going to have some significance, but if they try to mandate technology, I suspect that will go to court, too,” he said.

Despite intense FCC attention to DTV, the transition will vex broadcasters with engineering and other complications from powering down analog transmissions and ramping up digital signals. Broadcasters got “some leeway” for early shutdown of analog operations in a Dec. 31 FCC DTV order on technical operations, said Wiley. But regulatory flexibility only lessens the challenge, he added. “You're shutting down a 60-year-old industry. There’s a lot of complexity to change it all in one day.”