FCC Adopts Compromise on 'Must-Carry' Provisions for Cable TV

On September 11, the US Federal Communications Commission approved a plan that would continue to mandate cable TV carriers within an area make available all the broadcast signals receivable in that area. Both cable operators and broadcasters applaud the plan, but perhaps it's because it has not only been scaled back but also has an expiration date.

That date is three years following the February 17, 2009 transition date for terrestrial broadcasting from analog to digital format. After that time, the FCC will review the plan...though it would appear commissioners are betting that it will be a different FCC by that time.

Under the existing "must-carry" provisions of US telecommunications law, cable operators are compelled by law to offer the broadcast signals available in their coverage areas. With the transition to digital television under way, and with the bandwidth available to transitioning broadcasters having expanded tremendously, many local broadcasters have taken the opportunity to provide as many as four simultaneous channels over their designated frequencies, for what's called multicasting.

Cable TV providers had been complaining that a must-carry rule forcing them to provide all those extra channels - even if they're nothing but live weather radar updates or continual traffic camera feeds, as some multicast signals actually are - would result in them bumping popular CATV channels from their basic service. In many CATV carriers' spectrum - which is not compelled to change after 2/17/09 - there isn't room for them all. When Congress finally agreed to that transition date in February 2006, committee chairmen were able to strike accords with dissenters by simply postponing - or even cancelling - any and all debate over must-carry.

That shifted the burden to the FCC, which Congress had just gotten through scolding for behaving too much like a legislative body and not enough like a regulatory one. With no other choice but to abide by the 2/17/09 hard date, terrestrial broadcasters and CATV providers may have realized that, if they don't agree to a workable system now, the FCC's stance on such things as regulations for evolutionary new mobile digital broadcast systems like Europe's DVB-H...may not be wont to go their way.

So the measure the FCC adopted last week may not be so much a "must-carry" as a "really, really should carry" plan, having blunted two of its sharpest provisions: one being that such a mandate would go on indefinitely, the other being that the CATV system must offer each channel using the DTV signal's native bandwidth.

Those concessions alone merited praise for the new plan from the National Cable and Telecommunications Association. "We are pleased that the FCC's action today adopts cable's carriage plan," stated CEO Kyle McSlarrow following the Commission's passage of the plan, taking credit for having proposed the three-year limitation. "And we are pleased that the FCC dropped an ill-considered mandate that would have turned back the clock on decades of digital technology innovation. We continue to urge the FCC to act quickly to take into account the special circumstances of very small systems, and to make clear that those systems have the flexibility to serve all their customers without a one-size fits all mandate."

By making it seem like an evolutionary technological measure that would enable rural carriers to continue to pair CATV and broadband service on their existing copper, coaxial lines, the NCTA was able to swallow this version of the plan.

But you wouldn't know it was custom-made for NCTA's digestive purposes by having read FCC Chairman Kevin Martin's comments on the day of the plan's passage. "This item, at its core, is about the consumer," Chairman Martin wrote. "It is about ensuring that all Americans with cable - regardless of whether they are analog or digital subscribers - are able to watch the same broadcast stations the day after the digital transition that they were watching the day before the transition. If the cable companies had their way, you, your mother and father, or your next door neighbor could go to sleep one night after watching their favorite channel and wake up the next morning to a dark fuzzy screen. This is because the cable operators believe that it is appropriate for them to choose which stations analog cable customers should be able watch. It is not acceptable as a policy matter or as a legal matter."

With the nation's sleeping habits in grave danger, Martin acted quickly. "The 1992 Cable Act is very clear," he continued. "Cable operators must ensure that all local broadcast stations carried pursuant to this Act are 'viewable' by all cable subscribers. Thus, they may not simply cut off the signals of these must-carry broadcast stations after the digital transition. The Order we adopt today prevents the cable operators from doing just that."

Those quotation marks around "viewable" in the above paragraph are not by accident. In fact, they're the type of quotation marks perhaps best expressed by Mike Myers in his persona of "Dr. Evil." You see, part of the blunting of the must-carry order concerns a old and very useful way of euphemizing a word to make it mean less than it would otherwise.

While Martin wasn't very transparent about the proper use of those quotation marks, Commissioner Jonathan Adelstein - who issued a partial dissent, but for a different part of the plan - explained its proper use in surprisingly glowing terms. "Because the Commission has twice rejected mandatory dual carriage and multicast must-carry, it is important to recognize that the Order is not intended to be mandatory dual or multicast carriage disguised as 'viewability,"' Commissioner Adelstein wrote, quotes and all.

"The requirement that cable operators must deliver a 'viewable' signal to cable subscribers is not a mandate for the Commission to specify the ways in which an operator can deliver a 'viewable' signal," Adelstein continued. "Nevertheless, if a cable operator fails to deliver a 'viewable' signal to any cable subscriber, the Commission is obligated to protect the consumer. Cable operators must ensure that all customers can obtain the necessary equipment to view the signal. This is analogous to the need for over-the-air viewers to purchase digital TV sets or invest in a digital-to-analog converter box in order to view over-the-air signals."

In other words, the CATV provider must still make certain its customer can properly see or, quote-unquote, "view" any signal it provides to that customer. But it's under no obligation to make sure that signal approaches the digital quality in which it was originally transmitted.

So the National Association of Broadcasters found it had to swallow something hard as well. To aid in digestion, that something comes in a handy, "enteric" coating, if you will: quotes.

"Cable companies that have analog subscribers will be required to either down-convert a must-carry station's digital signals to analog for their analog subscribers, or provide equipment so their subscribers can receive digital signals," began a statement from the NAB last week. "The FCC ruling also prohibits 'material degradation' by cable operators in the carriage of high-definition broadcast TV signals."

And there are those pesky quotes again. As the FCC defines "material degradation," according to a legal analysis by broadcast law firm Davis Wright Tremaine, all that means is that the CATV operator is obligated not to water down a DTV broadcast signal beyond the quality it reserves for every other channel in its lineup.

In testimony before Congress two years ago (back before the debate was postponed), NCTA representatives said that a "must carry" provision for multicast signals would mandate basic cable services to allot more room on their standard spectrum than they actually have. You can't change the laws of physics, they argued. But now, the new provisions seem to please the NCTA just fine...as though those laws were changed just the same.

As NAB Executive Vice President Dennis Wharton stated last week, "For over a decade, broadcasters have embarked on a monumental effort to bring Americans the most pristine television pictures ever witnessed by the human eye. Yesterday's FCC rulings ensure that cable operators not be allowed to thwart that mission."

Hopefully no copy editor ever has to go back into Wharton's statement to re-insert certain missing punctuation.

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