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
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
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
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
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.