As expected, the FCC killed expanded must-carry at its regular meeting on Thursday, but the issue didn't go down without a lengthy eulogy. Commissioner Jonathan Adelstein, who voted to OK the measure that denied additional cable carriage rights for broadcasters, spent a good 20 minutes expatiating on its inadequacy.
"I have consistently maintained that it would be premature to decide multicast carriage without assurance that each programming stream would indeed serve its local community through the imposition of concrete and meaningful public interest requirements," Adelstein said.
He proceeded to deliver a screed on his own valiant efforts to establish public interest obligations for digital broadcasting, and how those efforts tragically fell on deaf ears, both at the commission and among broadcasters.
FCC Chairman Michael Powell passed the time chewing a pencil, checking the ceiling tiles, smoothing his eyebrows and breathing deeply.
Commissioner Michael Copps also whipped the public-interest pony -- with far fewer words than Adelstein--yet both commissioners voted for the measure in its full form. Only Commissioner Kevin Martin, who managed to deliver his opinion with stunning brevity, dissented in part on the multicast provision.
"The Commission made a policy judgment that the benefits of this programming were outweighed by the burden on cable operators. I disagree. I think the public would benefit more from more free programming," Martin said, noting that video compression technologies would continue to mitigate the bandwidth demand of multicast carriage.
Powell said the commission would be on "weak ground" if it expanded must-carry without more legislative support from Capitol Hill, which is undoubtedly what the NAB will seek. The broadcast lobby successfully rounded up a bevy of lawmakers to fire off letters urging Powell to let them handle must-carry in a comprehensive DTV bill, which is fully expected to be hammered out during this session of Congress.
Even as the statements flew over the FCC decision, Rep. Fred Upton, (R-Mich.), chairman of the House telecom subcommittee, scheduled this year's first hearing on setting an analog deadline. That hearing will commence Feb. 17.
FCC ruling or no, Congress can still do what it darn well pleases about must-carry. The chief inconvenience of an FCC ruling is the intervening requirement of a lawsuit courtesy of the National Association of Broadcasters
"In Washington," observed NAB President and CEO Eddie Fritts, "there are no final victories and no final defeats. NAB will be working to overturn today's anti-consumer FCC decision in both the courts and in Congress. We look forward to the fight, because consumers deserve more."
Robert Sachs, president and CEO of the other guys, was waiting in a hallway outside the FCC meeting room after the ruling. Resplendent in a black trench coat, the chief of the National Cable and Telecommunications Association said it was "clearly a major victory" for cable. He also said the door remained open for commercial broadcasters to negotiate carriage deals the likes of which the NCTA did last week with the Association for Public Television Stations. Under that arrangement, public stations get carriage of up to four of their multicast signals.
The APTS/NCTA deal was cited by several commissioners as a fine example of how things ought to be done, but APTS chief, John Lawson, nonetheless lamented the denial of expanded must-carry.
"While we are pleased to have secured digital multicast cable carriage for public television stations, we also consider it essential that local stations' digital signals be carried on direct broadcast satellite services, as well emerging platforms," he said.
The satellite lobby was predictably happy with the ruling.
As voted on by the FCC, the provision was in two parts - multicast and dual must-carry. With Martin's dissent, multicast went down 4-1, while dual must-carry was voted down unanimously, which was ironic given the FCC's response to a California station just the day before.
KJLA in Ventura, Calif. had requested permission to shut of its analog transmitters early, ostensibly to save the several thousand dollars necessary to power up a second transmitter. The FCC Media Bureau refused the request, even though KJLA demonstrated that only one-quarter of 1 percent of its analog audience received the signal over-the-air.
KJLA is in the Los Angeles DMA, where one-quarter of 1 percent is still quite a few folks, the FCC reasoned, and that "saving money" would only serve the "private interest" of the station.
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