PubTV: we merit carriage even if other stations don’t

[Gregg Lengling]

The FCC should require cable companies to carry all of public TV's multicast digital program streams even if it doesn't grant the same rights to commercial TV stations, public TV argued in an FCC petition filed last week.

"A policy of full multicast carriage for PTV stations would be consistent with judicial precedent and Commission policy, which recognize a legitimate structural difference between the commercial and noncommercial broadcast service," pubTV lawyers said in a joint CPB, PBS and APTS filing.

The FCC is deciding whether to overturn its 2001 ruling giving must-carry protection to only one "primary video" stream per station. The commission is likely to rule early next year.

Congress explicitly stated in the 1992 Cable Act that there is a "substantial governmental and First Amendment interest in ensuring that cable subscribers have access to local" public TV stations, pubcasters pointed out. That same rationale still applies today, they said.

Public TV continues to support multicast must-carry protection for all broadcasters, PBS Chief Operating Officer Wayne Godwin told Current. But if the FCC withholds it for commercial broadcasters, it should give must-carry to public TV, the filing said, because the Public Broadcasting Act mandates universal distribution of public stations to all Americans.

"Public television receives a distinctive statutory treatment that recognizes its unique purpose, means of support and method of operation," APTS President John Lawson said in a news release. "We are asking the FCC to continue to recognize that."

PBS has done an excellent job in showing how it plans to use its multicast streams for new programming, said Rick Chessen, head of the FCC's DTV Task Force. Speaking to pubcasters in a November videoconference sponsored by the Hartford Gunn Institute, Chessen said the FCC "is focusing heavily on the issue" and has put it "next in line" to address.

Chessen didn't reveal which way the commissioners are leaning, but many observers of the proceeding believe the FCC ultimately will require cable to carry broadcasters' digital programming channels once the DTV transition is complete.

Observers say the FCC is unlikely, however, to require cablers to carry both a broadcaster's analog and digital channels during the transition, a requirement known as "dual carriage." Cable execs regard this as wasteful since many of the channels will have identical schedules. In 2001 the commission tentatively ruled that would be unconstitutional.

While pubcasters make their case before the commission, they're also continuing to pursue voluntary carriage agreements with the nation's top cable providers. After nearly four years of trying, public TV has penned just two carriage deals. They are with Time Warner, the nation's second-largest cable operator, and ninth-ranked Insight Communications.

Comcast, the nation's largest cable company, is pursuing local agreements with individual public TV licensees and has secured about 25 deals, according to PBS. But Comcast is making most of its deals with the larger pubTV stations in a market and ignoring smaller ones, especially where their signals overlap.

Public TV is lobbying Comcast to carry all stations, but it's "simply a reality of the telecom marketplace today" that Comcast can cherry-pick, Godwin said. "Without legislative involvement, there's little we can do about it."

Cable companies have said repeatedly they don't want to carry duplicative or purely profit-generating streams from broadcasters.

"Rather than compete in the market on the basis of quality and value as other programmers do every day, broadcasters want the government to guarantee cable and satellite distribution of every new service they launch," said Robert Sachs, president of the National Cable & Telecommunications Association, at this month's cable Western Show in California. "Consumers want more choices and greater programming diversity, not multiple channels from the same broadcast entities."

If the FCC adopts must-carry requirements, cable will surely contest the rules, tying up the digital transition for two to three more years in court, said cable consultant Steve Effros at a New America Foundation forum about must-carry in Washington, D.C., this month.

"This is the taking of somebody's property," he said. "It is a tax, a redirection of revenues."

But broadcasters argue that to preserve free, over-the-air television, they need access to the nearly 70 percent of homes that get TV via cable.

Commercial broadcasters just want to use spectrum for data transmission, pager services and other business schemes, Effros charged. In the name of "free, over-the-air TV," they want to take property away from cable and do whatever's good for their bottom line, he said.

Pubcasters are trying to do much the same thing, Effros added. While they say ratings are unimportant, they seek forced carriage of all their stations to expose millions of cable viewers to their pledge programming, he said.

Cable is more than willing to carry public TV signals without must-carry, Effros said. It's just unwilling to carry the duplicative programming of multiple PBS stations in overlap markets.

Far from happily carrying public TV stations, cable frequently dropped PBS stations or arbitrarily switched their channel assignments in the days before analog must-carry, Jeff Chester, executive director for the Center for Digital Democracy, said at the forum this month.

The only reason Time Warner agreed to a national carriage agreement in 2000 was because it was seeking FCC approval of its merger with America Online and needed good press, he said.

"Multicast must-carry on cable systems is a life-or-death issue," Lawson said at the forum. "If we don't have multicast carriage of our signals, public TV will go away."

Public TV has raised more than $1 billion to convert to digital, Lawson added. Much of that was raised on the explicit promise of creating certain multicast services, including children's, educational and public affairs programming. If pubcasters can't guarantee that 70 percent of the audience will receive the services, they will never be able to pay for the programming, he said.

Chester argued the FCC should tie must-carry rights to public interest programming obligations. Such public interest requirements can be crafted in a First Amendment-friendly way, he contended. If broadcasters aren't given obligations to benefit the public, courts will be unable to uphold must-carry, he said.

Chester's idea seems to be developing traction at the commission. The two Democratic commissioners have said they'd be interested in granting must-carry for increased local public service programming.

The National Association of Broadcasters is likely to oppose new obligations, as it has in the past.