Big Three network affiliates asked the FCC Tuesday to reconsider its March decision not to mandate cable carriage of all the free channels on broadcasters digital spectrum, saying the commission's reasoning was "fatally" flawed.
The arguments are similar to ones made by the National Association of Broadcasters In April--the networks do not belong to the association, having exited after a disagreement over station ownership limits, and came in response to comment filed one by the cable industry arguing the FCC had gotten it right.
The nets and NAB are in agreement that the FCC reasoning was fatally flawed.
In their petition, the Big Three argue that the commission used the wrong legal standards to evaluate multicasting.
First, the commission said that a multicast requirement would have to be "necessary" to achieving an important government interest, while the affiliates argue that the standard should be whether it "advances" that interest.
Similarly, the FCC said that a station's "survival" should be the test of whether the mandate was necessary, while the stations argue that Congress's intent--citing the Supreme Court's upholding of the analog must-carry rule--was also to prevent "a weakening of the over-the-air television industry and a reduction in competition.
They also fired back at some of cable's arguments, saying that the fact that some multicasting deals have been struck is not evidence that a mandate is unnecessary, "any more than the fact that 97% of broadcasters' analog signals in 1992 were being carried by cable systems rebutted the need for a mandatory analog carriage in the 1992 Cable Act."
"Ultimately," said the groups, "the question for the commission is whether cable systems should be permitted to strip free, over-the-air video programming from a local broadcaster's digital signal or, instead, whether important governmental interest are advanced by the access of the public to all free services included in the local station's digital signal."
Broadcasters are also looking for multicasting help in Congress, pushing for a multicast mandate in a new DTV transition bill, which would effectively trump the FCC's February decision.
Although in its Feb. 10 decision the commission upheld its interpretation of the primary signal as a single channel, not multicast channels, it said it had found that term "primary" more ambiguous than it initially held.
That seemed to open up the possibility that Congress could weigh in to clarify what it had meant when it required cable to carry the primary digital signal.
Commissioners Kathleen Abernathy and Michael Copps suggested as much at the time. Abernathy said that one difference between multicasting must-carry and analog must-carry is that there was not clear Congressional direction on multicasting, and that Congress was free to weigh in in its planned re-write of the 1996 Telecommunications Act, and the FCC would enforce whatever law it laid down. Copps said Congress could weigh in as well.