The National Association of Broadcasters is going for the brass ring on digital must-carry, asking the FCC to make it a precondition of the AOL-Time Warner merger. If ever there were a target of opportunity, this looks like one.
Time Warner opened itself to just such targeting when it pulled the plug on ABC three weeks ago-a faux pas heard' round the world. Whatever the merits of its dispute with the parent Disney corporation, Jerry Levin reminded Washington that cable is the gatekeeper to 70% of U.S. TV homes and a force with which to be reckoned.
The question has been and is: Having gone to the trouble of wiring most of America, must cable now pay the price of carrying broadcasting on its shoulders?
Now, what was the medium that brought cable to the dance? Broadcasting, of course, which for years was the dominantly viewed cable programming-and was truly free, to the cable operator.
This page has always opposed must-carry on constitutional grounds. Our first dedication is to the First Amendment, which, as we see it, says no person has a right to program somebody else's medium. Unfortunately for cable and our point of view, the Supreme Court doesn't agree. It says must-carry, at least in analog, is the law of the land.
The FCC, speaking for the government, has decreed that broadcasters develop the digital medium. It hasn't said boo to cable on that subject. Broadcasters think they can't get there in digital without cable and that the FCC should intercede in the greater public interest of developing this new technology.
As things stand now, must-carry is a one-way street favoring the broadcasters (even if much of the market power is with cable). If they want must-carry, they can have it. If they want to withhold their signals, they can (and broadcast to 30% of the population). Or if they want to gamble on retransmission consent, they can call for the dice. In digital, with very little programming power to put on the table, they'll just take must-carry, thank you.
It might be in cable's interest to just say yes. Digital gives it great capacity, too, and through must-carry it could, in the process, suck up the best of the broadcasting business. Cable's penetration-against satellite and telcos and all the other pretenders to the audience throne-might then go to 75%, or 80%, or even 85%. And the next thing you know, some congressional committee chairman or some FCC chairman would say: "Why do we need all these over-the-air frequencies?" A lot of people might second that motion, and free television would be a thing of the past.
Must-carry has gotten the broadcasting industry where it is today, visàvis its competition. It is said that the definition of insanity is doing the same thing over and over again, and expecting different results each time.
What do we think is a better way? Keep broadcasting as the free, universal, over-the-air medium. Make strategic alliances with whomever you choose, on any terms you can manage. Compete like hell and forget the FCC.
As for NAB's wish list on AOL-Time Warner: Be careful what you wish for.