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January 19, 2001


Re: In the Matter of Carriage of Digital Television Broadcast Signals (CS Docket No. 98-129); Amendments to Part 76 of the Commission’s Rules; Implementation of the Satellite Home Viewer Improvement Act of 1999; Local Broadcast Signal Carriage Issues (CS Docket No. 00-96); Application of Network Non-Duplication, Syndicated Exclusivity and Sports Blackout Rules to Satellite Retransmission of Broadcast Signals (CS Docket No. 00-2) FCC No. 01-XX

I am pleased to support this item which I believe provides the clarity that the cable and broadcast sectors have been anxiously awaiting from the Commission. While this order does not put to rest all of the fundamental issues integral to the transition to a digital world, we have, I believe, eliminated some uncertainties in our posture. As such, the order enhances our development of policy as we go forward to decide the larger, more constitutionally complex issues.

I write separately, however, to address our decision on primary video and its effect on those broadcasters that plan to multicast, particularly public broadcasters. I believe our decision is compelled by the language of the statute, leaving us little choice but to interpret it faithfully. Regrettably, this may make it more difficult for digital broadcasters to obtain cable carriage, though I sincerely hope cable operators will negotiate fairly in an effort to accommodate creative broadcast offerings, particularly the good works of public broadcasters who have a unique public mission, and to help facilitate the transition to digital television. If the Commission’s construction of this statute should negatively impact the development of digital television, recourse to Congress for redress may be warranted, given that the statute clearly did not contemplate must carry in a digital world.

In a related context, I question the interpretation of Section 615(g)(1) suggested in the FNPRM as to “program related” content of noncommercial educational programming that is required to be carried by cable operators. As have others, I struggled with an appropriate interpretation of the statute. Public broadcasters indicated in comments on the record their plans to multicast a range of programming streams delivering a variety of content for different audiences. Inasmuch as these programming streams represent separate, distinct and multiple transmissions, I am unable to defensibly conclude that they are entitled to must carry as “program related” content. To do so would not comport with what I derive to be the congressional directive: that a broadcaster must select only one programming stream as primary and a cable operator is required to provide mandatory carriage to only one such designated stream. This is a question of statutory interpretation, and I might accept a more flexible definition if it were a discretionary policy judgement.

Finally, I urge continued flexibility on the part of broadcasters and cable operators to bring these issues to a successful outcome. I am pleased that we can bring to closure in this item those matters that we truly suppose to be clear. We can all advance to the decisions we will be called to make another day.