The FCC has issued an order that for the first time establishes rules for the mandatory carriage of digital television stations on cable TV systems. Must-carry will apply only to a single programming channel, analog or DTV, plus program-related material. In a Further Notice of Proposed Rule Making, the FCC is seeking further comment on this issue, including information on the need for dual carriage for a successful transition to DTV and the return of analog spectrum, present and future cable system channel capacity, and the use of retransmission consent for DTV signals.
The specifics of the FCC's DTV must-carry rules are as follows:
Retransmission consent: The Commission concluded that commercial television stations broadcasting in both analog and digital during the transition may choose must-carry or retransmission consent for their analog signals while electing to negotiate for retransmission consent for their digital signals. The Commission ruled that a station electing retransmission consent for its digital signal may negotiate with a cable operator for partial carriage, i.e. one channel, of that digital signal. Finally, for the time being, a television station may tie the carriage (one channel) of its digital signal with the carriage of its analog signal as a retransmission consent condition.
Content of signal subject to mandatory carriage. The Commission ruled that the “primary video” entitled to mandatory carriage includes only a single programming stream and other “program-related” material. The station may choose which of its unrelated multiplexed signals is considered the “primary” video. Among the program-related materials that would also be subject to must-carry are closed captioning, V-chip data, Nielsen ratings data, and channel mapping and tuning protocols, but not e-commerce or Internet services.
Channel capacity: Section 614 of the Communications Act requires cable operators to devote up to one-third of their activated channels to must-carry. The use of the term “channels” is no longer appropriate in a digital environment, where capacity is measured in megabits. Accordingly, the Commission revised the method for calculating a cable system's channel capacity by totaling usable activated channel capacity of the system in megahertz and dividing that amount by three.
Signal quality: In Section 614 of the Act, commercial television stations must provide a “good quality” signal at a cable system's principal headend in order to qualify for must-carry. The Commission determined that for DTV stations, the signal strength level necessary to meet this requirement is -61dBm.
Material degradation: The Commission found that cable operators may remodulate digital broadcast signals from 8VSB to 64 or 256 QAM. Cable operators are not required to pass through 8VSB signals, although the Commission noted that doing so might be a good option for cable operators early in the DTV transition. The Commission also found that cable operators may not carry a DTV signal in a lower resolution than that afforded to a non-broadcast digital programmer carried on the cable system. As to the statutory requirement that must-carry stations be carried without material degradation, the Commission found that a cable operator would not necessarily be materially degrading a DTV signal if it carries less than the full 19.4Mb/s transmitted by a broadcaster.
Channel location: The Commission found that there is no need to implement channel positioning requirements for DTV signals like those that exist for analog signals, and that channel mapping protocols contained in the PSIP data stream adequately address a television station's channel positioning concerns.
Set-top box availability: The Commission found that a cable operator is not required under the Act to provide subscribers with a set-top box capable of processing DTV signals for display on analog sets.
Carriage on PEG channels: The Commission found that carriage of digital non-commercial educational stations and digital LPTV signals on unused public, educational or government access channels, with the permission of the local franchising authority, is consistent with the Communications Act.
Basic tier: Importantly, the Commission held that DTV signals carried pursuant to must-carry must be available to all subscribers on a basic service tier.
In a related decision, the FCC ruled that a Florida digital-only television station is entitled to mandatory carriage rights on cable systems in its local cable market. The FCC granted the station's carriage request and ordered that as a transitional matter the station could elect whether its signal would be carried in digital or analog format. If the station elects analog carriage, it must provide at its own expense equipment to the cable operators to convert the DTV signal to analog.
Harry C. Martin is an attorney with Fletcher, Heald & Hildreth PLC, Arlington, VA.
Television stations in the following locations must file their biennial ownership reports on or before June 1, 2001: Arizona, Washington D.C., Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia and Wyoming.