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Operators Duel Over 'Dual Carriage'

Programmers sue FCC over mandate to air must-carry stations in analog and digital if necessary 2/08/2008 07:00:00 PM Eastern

Cable operators were divided last week over programmers' attempts to overturn an FCC decision requiring cable systems to potentially deliver all must-carry stations in both digital and analog after the Feb. 18, 2009, DTV transition date.

The cable networks, led by C-SPAN, sued the FCC in federal court, saying that making “almost all” cable operators carry two versions of the same station unfairly forces channels like C-SPAN off the air. They also argued that the FCC exceeded its congressional authority to regulate the industry.

To avoid an even stricter DTV carriage regime, the National Cable & Telecommunications Association had essentially crafted the compromise carriage agreement eventually adopted by the FCC last September. NCTA was standing by the rule last week, with NCTA President Kyle McSlarrow saying it would abide by the carriage agreement even if the court threw it out.

Though the cable industry did not relish the government-mandated occupation of valuable spectrum capacity they feel they should control, it feared even more a proposal that cable carry all of a broadcaster's digital information, which would have put a crimp in digital compression techniques and other methods of economizing on bandwidth.

But while its cable operator members could live with the deal, which is set to sunset in three years, a group of six cable programmers—C-SPAN, Discovery, The Weather Channel, TV One, A&E and Scripps Networks—could not.

Almost as soon as the FCC's order mandating the “dual carriage” requirement was published, C-SPAN and the other programmers filed suit in the U.S. Court of Appeals for the D.C. Circuit, saying that the FCC's action were arbitrary and capricious and a violation of the Administrative Procedures Act, coincidentally the same arguments made against the FCC's profanity crackdown.

C-SPAN's concern with the dual carriage rule, Corporate VP and General Counsel Bruce Collins told B&C, is that it picks favorites, giving a governmental preference to TV stations over cable channels like C-SPAN's suite of public affairs networks.

Is there any evidence that C-SPAN will get bumped by the carriage obligation? “That's the problem,” he said. “It is an insidious issue. There is absolutely no way of calculating the risks of getting knocked off or being prevented from being put on any particular system because the variables are so many. But there is a limited amount of capacity, and the government is tapping all of these must-carry stations with a preference that we think is undeserved.”

But while the NCTA was backing the FCC, the American Cable Association, which represents smaller systems with even greater capacity constraints, was not: “We applaud what they did,” said ACA's VP of government affairs, Ross Lieberman, of the suit. “For our members, carrying that programming is a burden because systems with limited capacity will have to make tough choices between carrying two seldom-watched must-carry channels at the expense of other programming like C-SPAN3.”

Could ACA sue as well? “Anything and everything is still on the table,” he said.

For its part, the FCC was standing by its decision. “All Americans with cable—regardless of whether they are analog or digital subscribers—should be able to watch the same broadcast stations the day after the digital transition that they were watching the day before the transition,” said FCC spokeswoman Mary Diamond. The National Association of Broadcasters was standing by the decision, too, with NAB President David Rehr sending a letter to Martin saying it defended the FCC's “pro-consumer viewability rules” and adding that the suit could “derail the digital transition.”

Given the FCC's positioning of the rule as a way to make sure analog TV viewers are taken care of after the transition to digital, is C-SPAN concerned about how the suit could look to Capitol Hill? “I don't think so,” says Collins. “I think every First Amendment speaker has a right to assert his constitutional rights. We were against analog must-carry, and we see this as pretty much the same issue. We couldn't see standing by and letting it happen.”

E-mail comments to jeggerton@reedbusiness.com

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