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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.
Copyright © 2007, Davis Wright Tremaine LLP.
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