Court Wants DTV Explanation

[Gregg Lengling]

December 1, 2004 10:53am
Multichannel News


A U.S. Appeals Court has ordered the Federal Communications Commission to explain why it hasn't acted on TV broadcasters' requests to force cable systems to carry every free digital service transmitted by local TV stations.

The one-page order was released Nov. 22 by the U.S. Court of Appeals for the D.C. Circuit. A three-judge panel gave the agency 30 days to file a response.

At issue is a petition filed by Paxson Communications Corp. Aug. 27 that was designed to get the appeals court to pressure the FCC into adopting new digital-cable-carriage rules within a few weeks. Paxson has 14 days to respond to the commission's filing with the court next month.

Paxson — owner of 60 local TV stations that largely rely on mandatory cable-carriage rights — has joined the bulk of the TV-broadcast industry in lobbying the FCC to impose digital-multicasting-carriage obligations on cable operators.

The FCC ruled in early 2001 that DTV stations that elected must-carry on cable after they had surrendered their analog licenses were entitled to carriage of a single programming stream. A provision in federal law that requires cable carriage of a station's "primary video" meant just one programming service, the agency said.

But Paxson and other broadcasters complained that because digital technology allows them to use their digital spectrum to provide five or six programming services in the same amount of bandwidth occupied by a single analog channel, cable operators should be required to carry all of them so long as they are not subscription services.

FCC chairman Michael Powell has said that the argument that the commission has failed to act on the multicasting issue is incorrect. The agency decided the issue in 2001, he added, and has not elected to revisit that ruling.

However, an FCC staff plan to end broadcasters' digital-TV transition by Dec. 31, 2008, would call on the agency to impose digital-multicasting carriage obligations on cable, according to Media Bureau chief Kenneth Ferree.

Powell — who supported the 2001 interpretation of primary video as meaning carriage of a single service — has not publicly endorsed the staff proposal's carriage recommendation in the DTV-transition plan.

The D.C. Circuit's order was handed down by Judges Douglas Ginsburg, David Sentelle and Karen Lecraft Henderson.

The judges specifically asked the FCC to address six factors that govern whether the court should rule favorably on Paxson's request, formally called a petition for a writ of mandamus.

"We are obviously pleased by the action the court took today by requiring the FCC to respond within 30 days to our filing with the court on the subject of multicast must-carry," Paxson chairman and CEO Lowell W. Paxson said in a prepared statement.

"We believe the FCC can complete this action and grant multicast must-carry within a very short period of time," he added.