WASHINGTON — The Federal Communications Commission on Thursday once again dashed broadcasters’ hopes concerning the transition to digital television.
Voting 5-0, FCC commissioners denied broadcasters’ desire for a governmental requirement that cablers carry both analog and digital signals that broadcasters are capable of sending during the transition period.
The agency then followed with a 4-1 vote, with Republican commissioner Kevin J. Martin dissenting, to reject broadcasters’ request that the agency force cablers to carry multiple digital channels (multicasting) that broadcasters can transmit.
Both issues had originally appeared before the commission in 2001, when the agency first denied each. Thursday’s votes were a response to broadcasters’ appeal for reconsideration.
The National Assn. of Broadcasters, which led the move for reconsideration, pledged to fight the FCC’s final decisions by going to Congress as well as court.
Multicasting has been the more contentious of the two issues. Broadcasters maintain that in order to be competitive in the digital TV age, cablers must carry all channels that broadcasters could transmit in a digital stream. Cablers didn’t want to make room for as many as six channels that a single broadcaster in any market could send.
Only ‘primary’ channels
In what has been referred to as the “must-carry” statute, Congress decided that cablers would only be required to carry a broadcaster’s “primary” channel, which the FCC interpreted in 2001 to mean only one channel. The Supreme Court narrowly upheld the must-carry statute 5-4.
FCC chairman Michael Powell, acknowledging the ambiguity of the statute surrounding the word “primary,” said the agency was forced to err on the side of caution.
“When interpreting a statute that is susceptible to different interpretations, the commission is admonished to read it in a manner that best avoids raising serious constitutional issues,” he said. “Must-carry unquestionably imposes a First Amendment burden on cable providers,” he added. “I believe reading the statute now as expansively as broadcasters urge would likely wither before a First Amendment challenge. At a minimum, a serious constitutional question would be raised.”
Tied to 1996 act
Congress theoretically could clarify the statute when it takes up revision of the 1996 Telecommunications Act, which in turn could raise the possibility of a new or revised FCC ruling, if the clarification were to favor broadcasters’ broad interpretation of “primary.”
Justifying her vote, Commissioner Kathleen Q. Abernathy echoed Powell on possible constitutional implications. “To justify the considerable restrictions on cable operators’ First Amendment freedoms entailed by a multicasting requirement,” she said, there would have to be substantial evidence “that multicasting is necessary to prevent a substantial number of broadcast stations from suffering significant financial hardship. The record simply does not support such a conclusion.”
The commission’s two Democrats, Michael Copps and Jonathan Adelstein, also voted no on multicasting, but with reservations. Both criticized the agency for not having examined and weighed the public interest obligations of digital broadcasts.
“This commission still has not provided the American people with a clear idea as to how broadcasters’ enhanced digital spectrum is going to improve our viewing experience,” Copps said. “We have a record of inaction that will go down, I believe, as the commission’s major failing in its efforts to move the digital transition forward.”
‘Ready, fire, aim’
The commission promised to take up public interest obligations later this year — prompting Copps to describe Thursday’s vote as a case of “Ready, fire, aim!”
Martin said his vote, representing a desire for the FCC to indeed reconsider and order cablers to carry multicasts, was based on concern for independent operators.
“This decision will have the most adverse impact on small, independent, religious, family-friendly and minority broadcasters,” 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. Must-carry was designed for these smaller broadcasters that in the past have been unable to negotiate with larger cable operators.”
NAB prexy Edward O. Fritts released a statement saying, “In Washington, there are no final victories and no final defeats.” The NAB, he said, will work to overturn the decision in both the courts and in Congress. “We look forward to the fight, because consumers deserve more. And broadcasters will continue to serve our communities, because that is what local stations do best.”
National Cable and Telecommunications Assn. topper Robert Sachs said in his statement, “Today’s decision is a major victory for consumers because it ensures that the marketplace, not government, will determine which programs local cable systems carry, ensuring greater consumer choice and more diverse and better quality programming.”
NCTA recently announced a deal with public television stations, allowing them to transmit as many as four channels on a cabler’s system. Several commissioners cited the deal as evidence that voluntary negotiations, and not governmental requirements or regulations, are perhaps the best solution to the must-carry debate.