Late Effort to Have FCC Re-examine the DTV Transition Plan

It is a mere eighteen months away: American terrestrial television transmitters will vacate the VHF and UHF spectra that dominated the broadcast industry for most of the 20th century, and move to a new set of frequencies with the broader bandwidth required for digital television. While lawmakers complain that not enough people are aware their analog TVs won't pick up over-the-air signals after February 17, 2009, a collection of interest groups is now telling the FCC that it's neglected to enact critical ethical standards for the use of that spectrum.

The Benton Foundation's complaint deals with multicasting, which is something owners of new DTVs may have already discovered: Many relocated channels are capable of broadcasting three other sub-channels concurrently. For instance, viewers might find the old Channel 4 programming on the new Channel "4.1." But they may find other programming from the same station on Channels "4.2," "4.3," and "4.4."

CBS first experimented with this multicasting idea some years back, for broadcasting four angles of the same NBA basketball game. But now, broadcasters are finding they can leverage their three sub-channels for their own purposes, such as carrying other low-cost programming. Many NBC affiliate stations in metropolitan areas, for instance, carry the NBC Weather+Plus feed on one of their sub-channels.

But it's not Weather+Plus that has the Benton Foundation upset. It's evidence the group cites that the FCC neglected - whether intentionally or by a comedy of accidents - to extend its mandates for use of public airwaves in the public interest, to broadcasters' DTV sub-channels. So theoretically, while broadcasters are beholden to ethical principles on the ".1" channel, they could do whatever they wanted to with the rest.

"With less than 600 days before the completion of the transition to all-digital television broadcasting in the US, the American public deserves to know how television broadcasters will fulfill their role as public trustees of the airways in the digital age," states the Benton Group's submission to the FCC on Wednesday. "Benton and [the Campaign Legal Center] therefore urge the Commission to issue clear guidelines to ensure that broadcasters adhere to the law and serve the local educational, informational, civic, minority, and disability needs of the children and adults in the communities that TV stations are licensed to serve."

The Benton group document details a 12-year history of the FCC deferring the matter of regulating DTV broadcasting in the public interest, to unspecified future dates. In fact, a majority of the document's text consists of citations of the FCC's own words, including requests for commentaries and guidance on the matter of how to regulate multicast channels in the public interest. For instance, it cited a 1999 Notice of Inquiry (NOI), posted in response to concerns raised by some of the groups joining with Benton.

"Do a licensee's public interest obligations attach to the DTV channel as a whole, such that a licensee has discretion to fulfill them on one of its program streams, or to air some of its public interest programming on more than one of its program streams?" the FCC asked in 1999. "Should, instead, the obligations attach to each program stream offered by the licensee, such that, for example, a licensee would need to air children's programming on each of its DTV program streams?"

The problem that some public interest groups pointed out was that digital broadcasters could choose to relegate some public interest programming - including, for example, airtime for candidates for public office - to the ".3" channel where the audience would be arguably lesser. "The Advisory Committee Report contemplates that, under certain circumstances, a digital broadcaster should not have nonstatutory public interest obligations imposed on channels other than its 'primary' channel," the 1999 FCC NOI continued.

"A majority of the members of the Advisory Committee believe that the FCC should prohibit broadcasters from segregating candidate-centered programming to separate program streams, because they believe that would violate candidates' reasonable access and equal opportunities. We seek comment on these approaches. In addition, how should we take into account the fact that DTV broadcasters can choose either to multicast multiple standard definition DTV program streams or broadcast one or two HDTV program streams during different parts of the day?"

The FCC apparently received the comments it requested, though the Benton Foundation contends it did nothing with them.

"Given the efficiencies of digital technology, DTV broadcasters are able to 'multicast' and air several programs at the same time, as well as provide more information within the signal of each programming stream," the group's report concluded. "The Commission sought comment on the ways broadcasters can use this technology to provide greater access to the media for people with disabilities and innovative ways unique to DTV that the Commission could use to encourage diversity in the digital era. The Commission has not issued a report on its findings."

The reason lawmakers may have been reticent to talk about multicast streams is that it was a very touchy subject, especially in 2005. Back then, while some congresspeople were working to set a hard and firm transition date for even sooner than February 2009, others were actively working to postpone the date until 2011 and beyond.

In order for the US Senate to pass a transition date bill, then-Commerce Committee Chairman Ted Stevens (R - Alaska) opted to defer debate on what were called must-carry provisions - existing laws stating that cable TV operators must carry broadcast signals within their license area, as part of their basic service. If the laws were left unchanged, CATV operators would have to find a way to carry both the main channel and sub-channels of all DTV broadcasters in their respective areas...even if their signals consisted of static, of 24-hour infomercials, or in many cases, of the same programming that appears on other sub-channels in the same area.

That postponement of debate helped the Senate pass the 2/17/09 transition date, though the matter of must-carry is being discussed only now. With the FCC acting as though its plan is to do nothing, leaving the current laws as they are, the National Association of Broadcasters last month sounded a note of support for the FCC's copacetic attitude toward the status quo.

"To ensure that cable subscribers are not disenfranchised by the switch to digital-only broadcasting after the end of analog broadcasting," reads an NAB filing with the FCC last July 17, "NAB and [Maximum Service Television, Inc.] fully support the Commission's proposal to permit cable operators to choose between (a) downconverting the signals of digital must-carry channels for all analog cable subscribers and carrying both digital and analog signals for those channels on their systems, or (b) carrying local must-carry signals in digital only and providing cable subscribers with analog television sets with the necessary equipment to view those digital signals. This 'viewability' proposal will promote Congress' goals of ensuring that the DTV transition is completed as promptly and smoothly as possible, while ameliorating adverse consumer effects from the transition. The proposal, moreover, is clearly and fully supported by the provisions of the Cable Television Consumer Protection and Competition Act of 1992, and does not raise any constitutional concerns."

In other words, the FCC's choice of action - or lack thereof - is right in line with 1992 must-carry laws, and that's fine by the FCC.

Next: How cable's quandary could tie up the transition plan