Six months ago, broadcasters' chances for new digital-carriage rights during the DTV transition appeared dead. Now DTV must-carry is getting new life.
So far, commercial broadcasters have been silent on a plan pushed by public-TV organizations that would force large-market cable operators that expand their capacity to carry broadcasters' digital channels in addition to the analog channels they already carry. But an FCC source said the industry is backing the noncommercial stations' idea privately because nonprofit public-TV outlets draw more sympathy than the National Association of Broadcasters' members would.
Nearly every relevant FCC office has now been briefed on the plan, and Chairman Michael Powell is taking a hard look.
The plan was crafted by Covington & Burling attorney Jonathan Blake, who also represents commercial stations on digital TV and ownership issues.
In another plus for TV stations, the FCC would establish a level of DTV-set penetration below which broadcasters would be allowed to delay their digital rollouts.
The idea, a modified version of the DTV must-carry plan broadcasters pushed for over the past four years, is getting Powell's attention because the DTV rollout is one of his priorities and viewers are unlikely to switch to the new technology unless more digital programming is available. Bringing DTV programs to the 67% of TV households that subscribe to cable is the quickest way to accomplish that.
"The FCC will give the public broadcasters' plan a very critical look," said Susan Eid, Powell's mass media and cable adviser.
Resurrecting any version of dual analog/digital carriage proposals would be vehemently opposed by the cable industry, which appeared to have scored a huge victory in January when the FCC tentatively concluded that digital carriage requirements would be an unconstitutional violation of cable system's free-speech rights.
"The PBS proposal is based on the erroneous assumption that 750 MHz cable systems have infinite channel capacity," said David Beckwith, NCTA spokesman. "If that were true, there would be no debate because cable operators want to offer consumers the greatest choice of programs.
"But public broadcasters represented by the Association of America's Public Television Stations, the Corporation for Public Broadcasting and the Public Broadcasting Service ordered a plan aimed at overcoming the First Amendment hurdle.
It's unclear whether Powell is serious about imposing new digital-carriage obligations or is simply hoping the threat will energize cable to settle other disputes impeding the rollout.
Previously, Powell complained that broadcasters have not offered digital programming compelling enough to warrant government intervention, even if the Constitutional questions are resolved.
Powell also is said to have dismissed rival plans suggested by some NAB members, which would eliminate dual carriage in return for guaranteed carriage of a station's full 6 MHz of spectrum, regardless of whether the outlet offers one HDTV channel or several lower-resolution channels. That approach also would hit cable operators with a big bill by obligating them to buy digital set-top boxes for subscribers who don't have DTV sets.
The NAB's official approach is still being developed by its digital task force and a draft is expected by Aug. 15, the due date for the next round of replies on the FCC's DTV rules.
The FCC concluded in January that dual digit-al/analog must-carry rights for local stations during the DTV transition would be unconstitutional because many cable operators would be forced to bump cable networks from their channel lineups to make room.
The public-TV plan tries to preserve cable networks by phasing in digital obligations based on cable systems' capacity and market size.
According to the plan, dual carriage would be required of systems with 750 MHz of capacity in all top-30 markets where two or more DTV stations are on the air.