FCC Notice on Telco, Cable DTV Education Draws Constitutional Concerns
An FCC notice asking if the agency should expand digital TV consumer education with requirements on telco, cable and satellite TV raises constitutional questions, Commissioner Robert McDowell and a lobbying group said. But the group, the Independent Telephone and Telecommunications Alliance, praised a revised FCC order increasing flexibility given to telecom companies’ educational efforts. The combined order and notice were issued about 5:45 p.m. Wednesday, less than a week after being circulated by Chairman Kevin Martin. Commissioners wanted to clarify which types of devices consumer-electronics sellers must fit with DTV information before the rules take effect April 30, said an agency official. CE retailers got a month’s delay on enforcement of the rules.
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Eligible telecom carriers can send postcards to tell low-income customers of the transition, said the order, answering a request by Rural Cellular and Norwest Dakota Cellular. They said postcards would be cheaper than explaining the transition on Lifeline and Link-Up subscribers’ monthly bills. ETCs would be hard-pressed to include information only on those customers’ bills, so carriers might wind up putting it all bills, limiting space for promoting telecom products, said Joshua Seidemann, ITTA’s regulatory policy director.
But telcos’ rights may be violated if the commissioners approve an item on which the notice seeks comment, Seidemann said. The agency wants to know if it should require ETCs to provide DTV information each month to all subscribers, as Rep. Fred Upton, R-Mich., suggested at an April 15 House Commerce Committee hearing. “Such a revision would ensure a wider reach for DTV transition notices as the Feb. 17, 2009, deadline approaches, but could increase costs for ETCs,” the notice said. That raises “jurisdictional and constitutional concerns” because implementing it could lead to government requirements on commercial speech, said Seidemann.
McDowell issued a partial concurrence. He said the FCC may violate pay-TV companies’ First Amendment rights if it adopts another provision it seeks comment on. The commission asked if it should require cable and satellite-TV providers to air DTV education spots, noting that NCTA members are spending $200 million on ads and related information. TV stations were required to run public service announcements in the original DTV consumer education order, a mandate pay-TV companies don’t face. “Why then are we seeking comment about whether to require something that the industry is already doing?” McDowell asked. “Where is the need for government regulation?”
Dish Network has aired a DTV spot featuring Martin and another with House Commerce Committee Chairman John Dingell, D-Mich., “over a thousand times across all core networks,” a company spokeswoman said. She declined to comment on the FCC notice, as did DirecTV and NCTA executives. Comments are due to the FCC 30 days after the order and notice run in the Federal Register, and replies 15 days later.