FCC proposes "must-carry" requirements for TV stations

In an effort to transfer all television stations from analog to high-definition digital cable in February 2009, the FCC has made “must-carry” rules for TV stations. Recently, the Community Broadcasters Association (CBA), advocating rights for Class-A TV stations, has filed suit against the FCC, claiming that the dual must-carry rule was “a violation of the First Amendment” (2). Class-A TV stations are smaller, low-power stations that are required, by law, to carry at least three hours of local programming each week; most of these stations are designed to serve minority and rural audiences (1). With these case filings, the CBA has expressed concerns over how the required local programming will affect smaller Class-A stations’ survival in larger cable networks through the switch from analog to digital cable in 2009. Cable associations have claimed that they already carry some Class-A stations, but the CBA says otherwise (1).  According to the terms of the FCC’S “must-carry” rules, a low-power station is “considered ‘qualified’ if: (1) it broadcasts at least the minimum number of hours required pursuant to 47 C.F.R. Part 73; (2) it adheres to Commission requirements regarding non-entertainment programming and employment practices, and the Commission determines that the programming of the LPTV station addresses local news and informational needs that are not being adequately served by full power television broadcast stations because of the geographic distance of such full power stations from the low power station’s community of license” (3). However, I believe that the rights of these smaller stations have not been infringed upon because of the lack of spectrum scarcity that exists in television broadcasting as well as the government’s interest in delivering information to users of both analog and digital mediums until the 2009 shift.

            Many argue that the problem with enacting such laws for lower-power stations is that they may become less of a priority because of their narrowly local focus. “The requirement, which does not include an exemption for even the smallest operators in terms of MHz or subscribers, will force hundreds of operators to either drop channels their customers want to watch or prevent the addition of new channels, in order to carry duplicates of channels they already offer, all while costing each operator tens of thousands of dollars in equipment upgrades” said Matthew M. Polka, American Cable Association president (2).

            However, I find it very difficult to imagine that customers will get massive amounts of programming cut just because of the existence of duplicate channels; the duplicates will only be the few larger-scale channels that everyone watches. In the opinion delivered by Justice Kennedy in Turner Broadcasting System Inc. v. FCC, the court found that previous similar FCC mandates given to Class-A stations were indeed not an infringement on First Amendment rights. “The less rigorous standard of scrutiny now reserved for broadcast regulation should not be extended to cable regulation, since the rationale for such review--the dual problems of spectrum scarcity and signal interference--does not apply in the context of cable” (4). Regulations that apply to broadcasting methods such as radio, where there are only so many channels in which to broadcast information (the issue of spectrum scarcity), do not apply to as broad a medium as cable television. Thus, although the shift from analog to digital cable may require the existence of duplicate channels broadcasting the same material, there is no specific evidence as to how these “duplicates” will take the place of the Class-A stations within such a broad medium. Justice Kennedy continued in Turner that “Viewed in the abstract, each of the governmental interests asserted--preserving the benefits of free, over the air local broadcast stations, promoting the widespread dissemination of information from a multiplicity of sources, and promoting fair competition in the market for television programming--is important” (4). The purpose of the switch from analog to high digital does not violate any of the “governmental interests” mentioned in the Turner case; this switch does not inhibit the delivery of free information to viewers, but rather, enhances it by offering it on both analog and digital mediums. Similarly, the FCC is in no way violating the free-market of television programming by allowing certain major channels to be broadcasted multiple times, but rather, is trying to relate information that is most relevant to a maximum amount of viewers. The FCC is in no way infringing upon the rights of smaller local stations; the switch from analog to digital is inevitable, thus, the preferential broadcasting of major stations is directly related to the government’s interest in allowing a free-flowing medium of information.

 

Footnotes:

(1) "FCC exempts small cable operators from HD must-carry rule" by Matthew Lasar Published: September 05, 2008 - 07:15AM

http://arstechnica.com/news.ars/post/20080905-fcc-exempts-small-cable-operators-from-hd-must-carry-rule.html

(2) “Cable’s dying, the FCC’s killing it” by Jason Lee Miller. Published 02/07/2008 - 1:06PM

http://www.webpronews.com/topnews/2008/02/07/cables-dying-the-fccs-killing-it

(3) “Cable carriage of digital TV signals summary of FCC rules adopted January 18, 2001”

http://fjallfoss.fcc.gov/edocs_public/attachmatch/DA-06-1080A1.doc

(4)  Cornell Law School Legal Information Institute; Turner Broadcasting System, Inc.. v. F.C.C. (93-44), 512 U.S. 622 (1994)

http://www.law.cornell.edu/supct/html/93-44.ZS.html