Don't Play Games with the DTV Transition

NFL Network's carriage complaints raise pressing issue of retrans quiet period around the digital-TV tranisition

Is the ability to watch the New York Jets-New England Patriots game an inalienable right? No, of course not. But last week, the NFL Network—again—complained that it's just unfair that Comcast, the biggest cable operator, only runs the channel on a sports tier customers must pay extra to receive, and that Time Warner, the second-largest cable operator, doesn't run it at all.

Take football away from some people, including legislators who talk loudly and carry a big stick, and you could be forgiven for thinking you had missed some constitutional amendment in the folds of that storied document.

Comcast ought to be able to carry the NFL Network wherever it makes the most business sense. Time Warner can do what it wants. And the NFL Network should be able to put games on its network, even if it means that viewers in some broadcast markets don't get to see some games, even ones with a rooting interest in, say, the Patriots or Jets.

Last year, the league was forced under heavy pressure from Washington to go wide with the New York Giants-Patriots game, leading to lawsuits it has yet to resolve and headaches it is still feeling.

We raise the issue by way of segueing into a related one: the proposed quiet period for retrans negotiations surrounding the DTV transition. In short, stations negotiating retransmission rights with cable operators could really confuse the digital conversion if they pull their stations off a cable system on or before the Feb. 17 transition date because the stations can't come to terms with the cable provider. The FCC will likely seek comment on the issue, so here is our two cents.

The National Association of Broadcasters proposed a quiet period from Feb. 4 to nearly the end of March. That's nice, except the Super Bowl airs on NBC on Feb. 1, and what's more, many of the retrans agreements expire in December. So cable wants a longer quiet period, afraid a station will use the big game as leverage.

The FCC created this system when it decreed that the other side of the must-carry-mandate equation was that if stations chose, instead, to try their luck on the open market, they could do so, with no guarantee of carriage on cable, or cable subs access to those signals.

But the current issue is to avoid confusion: Should there be some moratorium on signal-pulling around the transition if retrans negotiations are at an impasse?

The answer is yes. It should not be one that is as long as the cable operators seek, yet it must be long enough to make sure that the Super Bowl isn't in play. FCC Chairman Kevin Martin has proposed just such a period. This is one of those infrequent times we are inclined to agree with him. Cable should not get an extended quiet period, which seems excessive, and broadcasters should give up a little leverage, which isn't asking much for the sake of the DTV transition.

The FCC is considering whether to step in to mandate a quiet period. We hope it doesn't have to. We think broadcasters and cable operators would be better served by acting like adults and finding common ground for their own voluntary moratorium.