Broadcast, Cable Debate Whether FCC’s Viewability Rule Interpretation Is Settled
TV stations and cable operators have differing views on whether an FCC rulemaking notice asking whether to extend viewability rules for another three years signals that the commission’s stance has long been settled. The 1992 Cable Act’s viewability provisions are at stake, the NAB said, in the agency’s forthcoming order on whether operators must continue to carry HD and standard definition versions of broadcasters guaranteed cable carriage in systems not all digital. Bright House Networks was among NCTA members that voluntarily committed to three years of what the industry terms dual carriage, and the association noted that period has ended. They said the NAB is trying to force the industry to treat that commitment as if it has no expiration.
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New Jersey’s state-funded consumer advocate largely sided with NAB, as reply comments were posted last week to docket 98-120 (http://xrl.us/bmy985). The state’s Division of Rate Counsel said operators with less than 553 MHz of capacity or fewer than 2,501 subscribers should be exempted from the rules, so they can distribute must-carry stations in analog only. The commission should clarify that the viewability rule requires hybrid systems that aren’t fully digital to give subscribers free equipment to “render” programming, the division said (http://xrl.us/bmy99f). And “for all-digital systems, the necessary equipment should also be provided at no additional cost due to the overarching benefit to the carriers from enhanced spectrum that arises from digital compression,” the advocate said. “Added available spectrum benefits all digital services provided by the carrier."
Small cable operators should keep their exemption and not have it narrowed as the NAB sought in initial comments (CD March 14 p6), the American Cable Association said (http://xrl.us/bmy99j). “NAB has presented no evidence that cable systems that offer some HD programming and rely upon the HD carriage exemption would not be significantly burdened by no longer qualifying for the exemption,” the ACA said. “Among small systems that continue to rely upon the HD carriage exemption, the financial and capacity constraints that necessitated the exemption years ago have not improved, and in some cases have grown worse.” The FCC should permanently exempt all-analog systems from having to carry the HD versions of must-carry TV stations, the association said.
NAB said the NCTA and its members showed no reason why the FCC’s “settled interpretation” of the act should be junked. “In the Notice, the Commission recognized that the Viewability Rule merely implements the statutory requirement that must carry signals be viewable on all receivers connected to a cable system, a requirement that would remain in place whether or not the Viewability Rule is extended,” the NAB said (http://xrl.us/bmy992). “The Commission need not, and indeed should not, accept its invitation to re-plow settled ground.” The rulemaking “is very clear” that it doesn’t seek comment on the statutory analysis the commission has taken since 1993, the association said of Time Warner Cable’s comments. “Where an agency applies an existing policy or statutory interpretation without reexamining them or inviting comments on those conclusions, it does not reopen its previous decision."
NAB, which “obviously” knew the three-year cable commitment limit, “would have no reason to oppose the sunset of the viewability rule” if it knew the deal was “open-ended,” the NCTA said (http://xrl.us/bmy998). “NAB fails to offer a shred of evidence -- indeed, it fails even to argue -- that these measures are necessary to serve the governmental interest set forth by Congress and acknowledged by the Supreme Court as the purpose and justification for forcing cable operators to carry local broadcast stations.” There’s an “irony” the NAB seems unaware of in seeking carriage of DTV stations in analog, three years after the FCC mandated all full-power stations stop broadcasting in analog, Bright House said (http://xrl.us/bmzaag). “NAB turns the 1992 must carry law on its head.”