January 19, 2001

The transition from analog television to digital television poses fundamental policy questions. Two issues are not open to question. First, Congress has determined the public interest obligations of broadcasters prevailing in the analog era will carry over to the digital era. ⁽¹⁾Second, this Commission must continue to ensure cable communications systems "are responsive to the needs and interest of the local community" and "are encouraged to provide the widest possible diversity of information sources and services to the public."⁽²⁾ Yet the majority today disposes of the question of the meaning of "primary video" in the must-carry context without reference to these explicit statutory purposes. In fact, there is no mention of the public interest in this section of the Order at all. By prematurely deciding that Congress intended to foreclose even public non-commercial stations from using their digital spectrum to broadcast several channels of programming with mandatory carriage on local cable systems, the Commission harms every American. ⁽³⁾

While I do not question the majority's authority to settle on some definition of the term "primary video," doing so without substantial discussion of other applicable sections of the Communications Act or related case-law determinations is untenable. As the Supreme Court noted in Turner Broadcasting System Inc., v. FCC, 520 U.S. 180, 189 (1994), must-carry provisions serve "three interrelated interests: (1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming." As a result, our deliberation should have explicitly considered these key concerns.

Moreover, the Communications Act subjects that portion of the broadcast signal that is not "primary video" but nonetheless is "program related" to the same must-carry requirements. Despite this requirement the majority determined to put off a decision on the meaning of the term "program related." ⁽⁴⁾ Leaving aside the wisdom of defining only one of two key terms, I fear today's attempt to state a bright-line definition of "primary video" while leaving the related definition of "program related" video open, will work more mischief than it avoids. As a result, this Commission may soon face a torrent of content-related disputes that we are ill-equipped to resolve.

One final point bears mentioning. Despite the length of time this docket has been open, I believe we would have benefited from a more deliberative approach than rushing the Order out the door at the end of this administration. The affected parties and the staff did their best to present and consider the merits of these issues, but the press of business rendered the effort insufficient. I hope in any future proceedings that reflective deliberation rather than student-like cramming characterizes our processes. For the foregoing reasons, I respectfully dissent.

1. 47 U.S.C. §336(d)("Nothing in this section shall be construed as relieving a television broadcast station from its obligation to serve the public interest, convenience, and necessity.")

2. 47 U.S.C. §521(2) and (4)

3. Order at pgs. 24-28 (construing 47 U.S.C. §614(b)(3)(requiring cable operators to carry the "primary video" signal of a broadcast station.)

4. Order at pg. 28