January 19, 2001

Re:	Carriage of Digital Television Broadcast Signals, CS Docket Nos. 98-120, 00-96, 00-2

After a long wait, we finally are addressing some of the issues involving the carriage of digital broadcast signals on cable. I would have hoped that this digital must carry proceeding would provide finality and clarity for industry participants who need sufficient lead-time to develop business plans. Unfortunately, it does not. While I support the majority of decisions in this Order, along with the Further Notice to establish a better record on the effect of a dual carriage requirement, I dissent to the tentative conclusion regarding dual carriage. I also write separately to emphasize the importance of our Further Notice regarding “program related” material in the digital context.

Dual Carriage

I support the Further Notice to collect additional information regarding cable operators’ system capacity, the status of digital retransmission negotiations, and the practical effects of a dual carriage requirement. I dissent, however, from the Majority’s “tentative conclusion” on a matter of law, which in effect states that industry has failed to meet its constitutional burden.

First, drawing such a tentative conclusion is gratuitous. The item concedes that the record is insufficient to accurately discern the impact on cable operators’ speech posed by a dual carriage requirement. Indeed, the Commission now asks for the very information -- including cable system channel capacity -- that I have been asking the Commission to collect for over two years. This information is significant especially in light of the upgrades being executed by the major MSOs, many pursuant to Social Contracts with this agency. Such system capacity information is solely at the disposal of cable operators. We also request important data on the status and scope of digital retransmission consent agreements. To what extent are cable operators voluntarily carrying digital broadcasts? The Majority should not form an opinion, even a tentative one, without first considering such fundamental data.

Second, the tentative conclusion addresses only one aspect of the intermediate scrutiny test. Specifically, the intermediate scrutiny standard established under U.S. v. O’Brien, as applied in the Turner decisions, requires that a content-neutral law affecting speech further a substantial or important government interest. As the item points out, that interest in the must carry context boils down to (1) the preservation of free over-the-air television; (2) the promotion of the widespread dissemination of information from many sources; and (3) the promotion of fair competition. Would a dual carriage requirement further that substantial government interest? The item is silent on this point. Such willingness to put the ball in industry’s court while punting on the subject of our own legal burden is emblematic, I believe, of the Commission’s need to develop a clearer, more visionary picture of its own role in the digital transition, regardless of what we ultimately decide on the question of dual carriage.

The government has a substantial interest in facilitating a successful digital transition for the American public. As all communications media go digital, broadcasting must follow suit or find its place in the history books along with the Passenger Pigeon. A successful digital transition thus would ensure that the public has access to free, over-the-air broadcasting in the digital age and beyond. A successful digital transition also would serve the government’s interest in promoting viewpoint diversity by providing a greater variety of independent programming sources.

Finally, there is no need to state a “tentative conclusion” at this time. The item states that the statute “neither compels dual carriage; nor prohibits it” and that “in order to weigh the constitutional questions inherent in a statutory construction that would permit dual carriage, we believe it is appropriate and necessary to more fully develop the record in this regard.” I agree. I therefore believe that it is unnecessary, and ill-timed, for the government to weigh in with a premature assessment of the constitutionality of dual carriage before we have collected and analyzed the evidence that would address this question. Moreover, such a determination might prejudice the outcome of any ongoing market-based carriage discussions. I also seriously question whether a federal court would entertain review of such a tentative conclusion, since it is not a final agency action. Accordingly, I would have issued the Further Notice without drawing a tentative conclusion on the issue of the burden to cable operators posed by a dual carriage requirement.

I caution parties not to view my dissent as addressing, pro or con, the merits of a dual carriage requirement. I have great sympathy for the many independent cable networks whose efforts to obtain carriage may be adversely affected by broadcast digital carriage. My preference, therefore, has been and will continue to be the fostering of market-based solutions. In that vein, over the past few years, I repeatedly have urged broadcasters and cable operators at gatherings I attend, both public and private, to negotiate in good faith on carriage of digital broadcasts during this transition period. I also have argued that as the carriage capacity of cable systems expands, with upgrades and the addition of digital capabilities, the burden of carrying broadcast programming diminishes accordingly.

Primary Video

I reluctantly conclude that the best reading of the statutory term, “primary video,” refers to one programming stream. I believe that this interpretation is the most easily defensible, but it is by no means the only reasonable one.

A single-stream interpretation of “primary video” could have the odd result of requiring broadcasters and cable operators to continuously examine broadcasters’ content to determine whether the signal is primary video, program related, or something else. For example, if a broadcaster in a tri-state area offers a main news program, and then breaks away to three video streams to cover local news in each state, would the entire news program be primary video, would the breakout streams be program related, or neither? A cable operator would have to draw these conclusions. In contrast, a definition of “primary video” that includes all free, non-subscription video programming streams would be easier to administer.

Ironically, a single stream interpretation of primary video results in cable operators using less, not more, spectrum for broadcast must-carry at the end of the digital transition than they do today. Each analog signal requires 6 MHz of spectrum on the cable system. By contrast, with digital compression, and if broadcasters offer multiple program streams, it is possible that the “primary video” will require 2 MHz or less of capacity, not six.

Of course, retransmission consent agreements might resolve these issues. For example, the cable operator might agree voluntarily to carry the entire free, over-the-air video programming signal. Absent a must-carry requirement, a broadcaster might be more willing to enter into retransmission consent arrangements to carry a portion of the digital signal in addition to the full analog signal during the transition period.

While I support the decision to limit the definition of primary video to one digital programming stream based on the current state of the record, I would entertain on reconsideration new or refined support for a statutory construction that justifies the carriage of multiplexed free video programming. Although the statute mandates that the primary video be carried, and expressly excludes mandatory carriage of ancillary and supplementary services, is there discretion under the statute for the Commission to find it in the public interest (and not unduly burdensome) for the cable operator to carry a station’s multiplexed free video channels? While the statute does not preclude carriage of multiplexed programming streams, it is hard to find legislative support for a more expansive mandatory carriage requirement.

Finally, I am particularly concerned about public broadcasters. As reflected in the record, and cited briefly in the item, public broadcasters have developed innovative digital strategies that rely heavily on multicasting. These include “a 24-hour children’s programming channel; an educational channel devoted to instructional video and adult education; a channel focused on local legislative and public interest issues; and the award-winning national programming schedule distributed by PBS.” To what extent does our construction of the “primary video” term allow for such multicasting, especially given the apparently broader definition of “program related” for noncommercial, educational broadcasters?

Conclusion

Given the complexity and importance of these issues, the Commission must proceed carefully and expeditiously. I intend to continue working with broadcasters, cable operators, content producers, and consumer electronics manufacturers, along with my colleagues on the Commission, to facilitate a transition to digital broadcasting that works for the American people.