NCTA: Time to Ditch Dual Carriage

Argue the dual carriage mandate is consumer unfriendly, unwieldy, no longer justifiable in a fiercely competitive marketplace, and unconstitutional

By John Eggerton -- Broadcasting & Cable, 3/13/2012 10:57:19 AM

The National Cable & Telecommunications Association is ready for the FCC to stop requiring it to carry TV stations in both analog and digital versions, arguing the dual carriage mandate is consumer unfriendly, unwieldy, no longer justifiable in a fiercely competitive marketplace, and unconstitutional.

The commission last month had suggested that the three-year requirement that cable operators carry must carry stations in both formats as part of the 2009 DTV transition should be extended another three years. While cable operators belonging to NCTA voluntarily agreed to the initial three-year carriage, even saying they would do so whether or not there was a mandate, they are ready to free up that bandwidth for the demands of an HD-filled, over-the-top delivered world. Cable ops are also required to deliver must-carry stations in HD if that is how they are delivered over-the-air.

The FCC voted in September 2007 to mandate dual-carriage for three years beyond the DTV switchover date of Feb. 17, 2009. The FCC last month asked for comment on whether to extend the mandate, clarifying that when the DTV date was moved to June 12, so was the three-year end date, which gives the FCC until June 12 of this year to extend the requirement or let it sunset.

In comments to the FCC, NCTA argues that it needs the bandwidth being taken up by continued analog and digital carriage of must-carry stations for more consumer-friendly uses like over-the-top video. It points out that the monopoly tag the Supreme Court put on cable in upholding must carry narrowly (5-4) in the Turner decision no longer applies, and even if it did, a dual-carriage mandate would not hold up even under intermediate First Amendment scrutiny today, when cable no longer has the "bottleneck" control over access to customers.

"Today, vibrant competition from Direct Broadcast Satellite ("DBS") and telephone company multichannel services has eliminated any such bottleneck control. And, in any event, unlike a signal that is not carried at all, a signal carried in digital format is fully viewable to those cable customers who subscribe to digital services," NCTA said. "Meanwhile, other customers can view such signals simply by obtaining and attaching readily available equipment."

NCTA says the rule requires it to carry analog channels of little or not value to analog customers while taking up valuable digital real estate. "The rule interferes with the editorial discretion of operators in determining how best to meet the programming needs and demand of all their customers," says NCTA, an argument cable operators have made, so far unsuccessfully, in fighting the overall must-carry regime, while providing a bandwidth burden that can no longer be seen as negligible.