Correct on Must-Carry

The FCC last week said it isn't going to force cable systems to carry broadcasters' digital spinoff channels. It's a good decision that held true to what we always believed was the cautious regulatory philosophy of Chairman Michael Powell (except when it comes to indecency).

The FCC vote doesn't surprise broadcasters, who saw it coming, but Congress may yet get the last word.

B&C has always been bothered by must-carry, which requires cable companies to carry broadcast signals whether they want to or not. Local broadcasting remains a national treasure worth guarding, but the First Amendment implications of mandating what cable must show has always troubled us, too. Our first allegiance is to the First Amendment, which says nobody has a right to program somebody else's medium.

The digital must-carry plan would have forced cable to carry all the other channels that digital TV allows broadcasters to carve out of their main channel. In a major city with, say, 10 broadcast stations, that could have added up to 50 new channels. The FCC also rejected the argument that cable be required to carry broadcast's analog and DTV signals during the transition to digital.

Given the issues before it—dual digital/analog must-carry and multicasting—the FCC did its regulatory duty. Absent a clear direction from Congress, reasonable commissioners concluded that they should not expand must-carry without certainty that there was an overriding public-interest duty to do so. We agree with Powell that, where speech regulation is ambiguous, the government should err on the side of conservatism, but we were troubled by reports that Commissioner Jonathan Adelstein considered the vote a kind of payback for broadcasters' failure to jump through his public-interest hoops.

A key factor, as a majority of commissioners pointed out, was the lack of congressional input. Congress' mandate for digital must-carry calls for cable carriage of a broadcaster's “primary video” signal. It arguably takes a bigger stretch to interpret that phrase to mean “everything technology can squeeze into the channel” than it does to conclude that it means the digital equivalent of a broadcaster's analog signal. In other words, stations get what the non-technical world calls one channel.

If broadcasters believe that their successful switch to digital hinges on mandatory cable carriage of multiple channels (that means they are effectively a cable service themselves), they need to convince Congress; the FCC isn't persuaded. Broadcasters will also have to argue that what they are trying to preserve is local weather and news, not home shopping and infomercials.

Congress is preparing a rewrite of the 1996 Telecommunications Act. If it wishes to better define mandatory cable carriage of “primary video,” it should do so now.

Not many big-name legislators were rushing to broadcasting's side last week, so it could well be that the matter is resolved. But we doubt it. The National Association of Broadcasters has good leverage points to use against members of Congress, who have to get elected every two or six years.

The NAB has pledged to fight the decision in the courts and in Congress. If it truly believes that the fate of the business depends on it, we say go for it.