Communications Advisory Bulletin
FCC Releases Details of Request for Comment on
Must-Carry Rules Post 2009 Digital TV Transition
By Burt
Braverman, Robert
Corn-Revere, Ronald
G. London and Chris
Fedeli
[May 2007]
As we previously advised,
the Federal Communications Commission (FCC) recently adopted a notice
of proposed rulemaking (NPRM) requesting comment on whether
(1) cable operators should be required to carry broadcasters' signals
in both analog and digital format after the February 2009 hard-date
for completing broadcasters' digital transition, and (2) the standards
for judging material degradation of broadcast signals should be
revised. On Friday, May 4, the Commission released the full text
of the NPRM revealing additional details of the proposals. Initial
comments on the NPRM are due July 16, 2007, and reply comments are
due August 16, 2007.
With respect to the statutory requirement that cable retransmissions
not subject broadcast signals to "material degradation”,
the FCC seeks comment on a proposal to move from a subjective standard
(i.e., whether the viewer can see a difference) to an objective
standard (i.e., whether any primary video and content-related digital
bits are in fact missing from the cable retransmission). The FCC
specifically asks how compliance with a new objective standard could
be verified, what tools or methods could be used to measure such
compliance, and what it would cost cable operators to comply with
an "all bits" degradation standard. Significantly, the
NPRM preserves the FCC’s earlier finding that digital must-carry
rights are limited to a single stream of broadcast programming,
not multiple streams (sometimes referred to as “multicast
must-carry”). It is possible, however, that broadcasters will
use this rulemaking as an opportunity to argue to the Commission
that limiting must-carry rights to a single programming stream (which
they recently have referred to as “stripping”) constitutes
"material degradation.”
The NPRM also asks for comment on how cable operators’ statutory
obligation to make broadcast signals available to subscribers should
apply after the digital transition occurs. Here, the FCC emphasizes
the importance that all cable subscribers, including those with
analog sets, continue to be able to view all must-carry broadcast
stations. The NPRM states that "in order to ensure that subscribers
with analog television sets remain able to view" all must-carry
stations, cable operators "must either: (1) carry the signals
of commercial and non-commercial must-carry stations in analog format
to all analog cable subscribers [in addition to carrying each station's
digital transmission], or (2) for all-digital systems, carry those
signals only in digital format, provided that all subscribers with
analog television sets have the necessary equipment to view the
broadcast content." The Commission claims that such a step
is necessary insofar as "all cable subscribers today are able
to view all of their must-carry stations, and . . . it is critical
to the successful and timely conclusion of the DTV transition that
they are not disenfranchised by the switch to digital-only."
This potential requirement to carry both analog and digital streams
of the same broadcast programming would be in addition to the requirement
that cable operators retransmit any HD broadcast signals in HD format.
The Commission intends to require an operator that elects to provide
signals in digital-only format to furnish boxes for all analog television
sets of a subscriber that are connected to the system, a requirement
that may encourage operators to choose dual carriage, thereby increasing
the bandwidth committed to must-carry and decreasing the capacity
available for carriage of non-broadcast services.
In conjunction with this proposal, the FCC seeks comment on ways
to "promote the goal of . . . transitioning all consumers—including
cable consumers—to digital" as a general matter. The
Commission also questions whether cable operators ought to bear
the costs of down-converting digital broadcast signals to analog
after the digital transition since, in the Commission’s view,
at that point it will become the cable operator's decision, not
the broadcaster's, to down-convert the signal rather than providing
subscribers with set-top boxes or other equipment to translate the
signal for use on analog sets. Similarly, the Commission notes that
the decision in the First Report & Order to not require cable
operators to provide subscribers with set-top boxes to translate
digital signals into signals capable of being viewed on analog sets
"was based on factual considerations" that "will
not apply . . . post-transition," i.e., the broadcasters' obligation
to simulcast and the likelihood that an identical analog signal
would likely be present. Consequently, the NPRM seeks comment on
the set-top box issue since "after the transition [subscribers
with analog-only sets] will face the prospect of not being able
to view the signals of must-carry stations unless they possess the
necessary equipment," and the FCC believes its prior holding
is not relevant to post-transition obligations.
This is obviously an important proceeding in establishing
the rules that will govern cable carriage of broadcast signals in
the new digital era. For further information, please contact:
This advisory is a publication of the Communications Group of Davis
Wright Tremaine LLP. Our purpose in publishing this advisory is
to inform our clients and friends of recent developments in the
communications industry. It is not intended, nor should it be used,
as a substitute for specific legal advice as legal counsel may be
given only in response to inquiries regarding particular situations.
Attorney Advertising. Prior results do not guarantee a similar outcome.
Thank you.
Copyright © 2007, Davis Wright Tremaine LLP.
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