Late Effort to Have FCC Re-examine the DTV Transition Plan

By Scott M. Fulton, III, BetaNews

August 17, 2007, 8:25 PM

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In contesting the FCC's current stance on DTV and the NAB's support of it, the National Cable Telecommunications Association submitted its own presentation to the FCC, also on Wednesday. There, the NCTA cited Supreme Court rulings, including a 1994 decision that overturned existing laws mandating cable operators must carry both analog and digital coverage of the same broadcaster's signal - the so-called "dual-carriage" law.

The high court actually ruled that law unconstitutional under the First Amendment. In response, the FCC changed its policy, unanimously concluding that "mandatory dual carriage would essentially double the carriage rights and substantially increase the burdens on free speech beyond those upheld [by the Court]." Ironically, the losing defendant in that milestone case was the FCC itself.

The NCTA continued by presenting a veiled threat: If cable operators were faced with a must-carry provision similar to the dual-carriage provision the Supreme Court overturned 13 years ago, it said, they would have to make room for those extra sub-channels in its existing frequency spectrum.

"This government-ordered permanent occupation of the cable system affects more than video," reads the NCTA submission to the FCC last month. "It slams into the nation's goal of expanded broadband deployment, codified by Congress in Section 706 of the Telecommunications Act of 1996 and realized by the billions invested by the cable industry in expanding residential high speed internet service...The Notice's dual-carriage proposal, were it to be imposed on the cable industry, would usurp valuable bandwidth and make it more difficult for cable to engage in the kind of technology innovation demanded by the marketplace and policymakers alike."

If the FCC doesn't take up the matter of DTV must-carry soon, the NCTA may be willing to make a fight out of this. But it might not be able to make a court case out of its argument that it can't find room in its channel guide for more sub-channels, especially with the questionable quality of the channels CATV operators have already chosen. They'll need something more convincing...a kind of free speech argument, which goes to the matter of public interest.

This is where the Benton Foundation, and 27 of its closest allies who co-signed its report, come in: By neglecting to even discuss the matter of the public interest, their argument proposes, the FCC may actually be violating the law. Perhaps the Commission is overlooking one cause in order to serve the interests of another, but in so doing, it may have created an impossible legal tangle: Theoretically, broadcasters could show whatever they want to show on those sub-channels. This could put CATV providers in a hopeless quandary, where they're forced by law to carry signals whose content they simultaneously may be forced by law not to show on basic services.

The irony of it all is not lost even on FCC Commissioner Michael Copps. In a statement on Wednesday, Copps wrote, "For years I have argued that the most important part of the DTV transition is to ensure that it increases localism and diversity on our airwaves. Broadcasters will be able to air up to half a dozen different digital program streams, so here is a wonderful chance for them to get away from all the homogenized, nationalized programming that big media has foisted on us in favor of covering the people and communities they actually serve. Digital technology can be a huge boon for all of us, but only if we make sure this spectrum serves the public interest. The FCC has been asleep at the switch on this one, refusing to address what is really the heart-and-soul of DTV. I welcome the comments of the 28 groups who came together to ask the Commission to get serious about defining how this transition will benefit not just broadcasters, but all the American people."