SPECIAL DIGITAL CARRIAGE STATUS FOR PUBLIC TV RAISED AT FCC

Sec. 615 of the Communications Act, which deals with PTV carriage, is separate and distinct from the commercial carriage statute (Sec. 614) and includes “unique” terms that indicate congressional intent to give PTV broader carriage rights, the public broadcasters said. They said Sec. 615 was a “unified federal scheme… that conjoins cable operators’ compulsory copyright license rights with mandatory carriage obligations in a way that leads to market failure for the distribution of noncommercial educational digital broadcaster programming if digital must-carry rules are absent.” The fact that PTV has received decades of federal, state and local funding demonstrates a “compelling government interest” in the preservation of the medium, they said. To buttress their argument for special treatment of PTV, they said PTV represented the “last true bedrock” of locally controlled free over-the-air media.

Expounding on the broader carriage rights conferred by Sec. 615, the public broadcasters said, for example, that the description of “program-related” material in the context of PTV stations differed “in substance” from that for commercial stations. They said the FCC had observed that the PTV provision included material that might “be necessary for the receipt of programming by handicapped persons or for educational or language purposes.” The absence of such language in the provisions relating to commercial stations “clearly indicates congressional intent to grant broader carriage rights to public television stations.” Providing examples of other “unique” PTV provisions, the public broadcasters said Sec. 615(e) mandates that restrictions on the carriage of duplicative programming would be triggered only if a cable system already is carrying 3 noncommercial TV stations. The statute also requires the FCC to define “substantial duplication” in a way that promotes access to distinctive noncommercial educational services, they said: “A multicast carriage requirement would accomplish precisely the same goal.” Other statutory carriage differences between noncommercial and commercial include differences in the definition of markets to determine carriage obligations and the amount of bandwidth required to be devoted to carriage by individual cable systems, the public broadcasters said.

Denial of multicast must-carry rights to PTV would “upset the balance restored by Congress” in 1992 when it obligated cable operators to carry the entirety of public broadcasters’ free broadcast signals as a counterweight to the compulsory copyright license to carry such signals that had existed since 1976, they said. PTV stations are at a “fundamental” and “unique” disadvantage compared with their commercial counterparts in that PTV stations lack retransmission consent rights, they said, and therefore can’t deny cable operators the right to carry their signals. The must-carry rights for public broadcasters which require cable to carry 3 or more local PTV signals, have “operated to prevent cable operators from using their compulsory license rights to cherry-pick” PTV stations in a market, the public broadcasters said. In the absence of digital must-carry rules, certain MSOs were doing just that, they said: cherry picking some stations in a market while denying carriage for others.

While many MSOs tout voluntary carriage agreements with PBS affiliates in certain markets, they “conveniently neglect to mention that they have refused to carry 2nd and 3rd PTV stations that serve minority and underserved communities in those markets,” they said. Congress repeatedly has reaffirmed its intent that PTV should have the broadest access to all available telecom technologies to ensure universal distribution, the public broadcasters said.