Although the Supreme Court in 1997 ruled that must-carry is the law of the land, fighting over it remains the general rule.
Today, broadcasters are in a standoff with cable operators over how must-carry should be handled in the digital age, while satellite TV companies await a federal appeals court decision on a law that requires them to carry all local TV signals in markets they serve.
So far, broadcasters haven't been getting their way when it comes to cable carriage of their digital signals. The National Association of Broadcasters initially pushed the FCC to require cable operators to carry both broadcasters' analog and digital signals during the transition. In a preliminary finding earlier this year, the FCC ruled that cable operators are required to carry only one version of broadcasters' primary signal, whether that be analog or digital.
Last month, the NAB board stepped back from its demand for dual must-carry. Now broadcasters are suggesting they won't push for dual carriage during the transition so long as cable operators are required to carry broadcasters' full 6 MHz digital signal once the transition is completed, whether that includes several standard-definition multicast channels, one high-definition feed or a combination of the two with data services thrown in.
One lawmaker—Rep. Ed Markey (D-Mass.)—would be on board with that plan but only as long as the ancillary services were free. "[Markey] believes that cable operators should have to carry every program that is available for free," said an aide.
Cable, however, is not on board, with executives saying privately they are obligated to carry broadcasters' replicated primary signal only and nothing more.
"We stand ready to work with all parties on the digital transition; however, a plan that reserves part of our privately funded network for each broadcast outlet without regard for the quality of that content would not be the best way for us to serve our customers," said David Beckwith, NCTA spokesman.
Meanwhile, Paxson Communications already is challenging the FCC's tentative opinion in the federal appeals court in Washington. Paxson says the 1992 Cable Act, which includes the twin doctrines of must-carry and retransmission consent, should be interpreted to mean that cable operators are required to carry the entire signal. NAB has not yet decided whether to support or oppose Paxson in that case, but NAB attorneys are concerned that supporting Paxson means giving up on dual cable carriage entirely, an option the association hasn't been ready to foreclose.
Top members of the House Energy and Commerce Committee, including Markey, are pushing broadcasters and related industries to jump-start the transition to digital television. Reps. Billy Tauzin (R-La.), John Dingell (D-Mich.), Fred Upton (R-Mich.) and Markey met with representatives of the broadcast, cable, consumer electronics and content industries earlier this fall. Another meeting is planned for Wednesday.
Both Tauzin and Markey have said they would be willing to push legislation if the industries cannot get the transition moving.
Outside of Washington, a group of executives from broadcast networks and station groups have met in Los Angeles and New York to brainstorm ways to work together and improve broadcasters' future. The group is said to be trying to figure out how to get cable operators to pay more money for broadcasters' signals. Emmis Communications' Chairman Jeff Smulyan is leading the effort and says the group is at the beginning of talks.
On the satellite side, the Satellite Broadcasting and Communications Association and EchoStar have asked the Fourth Circuit Court of Appeals in Richmond, Va., to stay a law that requires satellite-TV companies to carry all local TV stations in all markets they serve by Jan. 1. The motion says the court is unlikely to resolve a pending lawsuit on the matter before the deadline and thus should enjoin the law until the courts can resolve the issue.
The DBS industry, which may consist of only one carrier if the government approves EchoStar's purchase of Hughes, says the satellite "must-carry" law is unconstitutional because it dictates what programming satellite-TV carriers must offer. They also say it's an unconstitutional "taking" of satellite capacity.