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from: MultiChannel News

An Indirect Path to Mandate

By Ted Hearn7/10/2006

Washington— Senate telecommunications legislation would “indirectly” provide the Federal Communications Commission with a new opportunity to impose broad digital broadcast-TV carriage requirements on cable operators, according to Senate Commerce Committee chairman Ted Stevens (R-Alaska).

Stevens — who is sponsoring a sweeping telecommunications bill (S. 2686, H.R. 5252) that passed his committee on June 28 — included new language that addressed cable carriage of digital TV stations that demand access without compensation, also called must-carry.

'PRIMARY’ CHANGE
The new language states that cable operators have to carry “any digital video signal requiring carriage;” existing law requires carriage of a TV station’s “primary video.”

The change has potential importance because the FCC has twice determined that the phrase “primary video” meant mandatory cable carriage of one programming service per station. Broadcasters are hopeful the FCC could be persuaded to read “any digital signal” more broadly than it did “primary video.”

Asked if the addition of the words “any digital video signal” was aimed at imposing must-carry on cable, Stevens indicated that was his intention. “I don’t think it does directly. But indirectly it does,” Stevens said June 28. “Indirectly, it does, yes.”

The FCC rejected broadcasters’ interpretation that “primary” should have only a plural meaning and that cable operators should be required to carry every free video service a station can deliver with its digital bandwidth. Based on current technology, “multicast” must-carry could require carriage of six or more services per station.

National Cable & Telecommunications Association spokesman Brian Dietz downplayed the significance of the changes made in the Stevens bill. Cable has opposed multicast must-carry as a violation of First Amendment free speech and Fifth Amendment private property rights.

“We are not disputing the change in language,” Dietz said. “But we are saying that the change in language — from primary video to video signal — does not change cable’s must-carry obligation.”

Dietz said that because the Stevens bill would require carriage of any video signal “requiring carriage,” cable’s obligation to carry one programming service per DTV station would not be affected.

FCC chairman Kevin Martin supports multicast must-carry for cable, but he’s still searching for a three-vote majority to reverse FCC precedent that “primary video” meant one service per TV station.

“If I were chairman Martin, I would say [the Stevens bill] is helpful because this is broader language — clearly intentional,” said broadcast attorney Jonathan Blake, with Covington & Burling in Washington, D.C.

By imposing multicast must-carry after twice rejecting it, the FCC would likely have to justify its more expansive reading of “primary video” to a federal court. Federal agencies must provide a reasonable basis for reversing themselves.

Stevens, Blake added, could assist Martin’s quest for a multicast must-carry majority and improve the FCC’s chances in court if the “any video signal” language became law.

VOIDS A NEGATIVE
“I think it’s more helpful in eliminating a barrier,” Blake said. “It eliminates a negative. It isn’t in itself a strong positive.”

DirecTV Inc., the largest satellite TV provider, had concerns that the Stevens bill would require satellite TV providers also to carry “any video signal” instead of the “primary video.”

Sen. Jim DeMint (R-S.C.) won approval of an amendment that would require satellite carriage of the “primary video.” But a DeMint aide said that Stevens aides blocked DeMint from making the same change for cable.

James Assey, telecommunications policy adviser to Sen. Daniel Inouye (D-Hawaii), co-chairman of the Senate Commerce Committee, said he thought the inconsistency between cable and satellite carriage was an oversight and the two would be conformed so that both were required to carry the “primary video.”