FCC Can’t Guarantee Class A Carriage, Say Pay-TV Providers
Pay-TV providers lined up against supporters of some low-power stations getting must-carry status over whether the FCC should set the stage to require cable operators to distribute Class A stations. Replying Friday to a March rulemaking notice on diversity, the Community Broadcasters Association and 31 groups representing minorities said the FCC has power to give the stations must-carry status. Not so, said Comcast, Cablevision, Time Warner Cable, Verizon and the NCTA. Some comments cited limitations imposed in section 614(h)(2) of the Communications Act.
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The First Amendment bars the FCC from giving must-carry status to Class A stations that don’t already qualify for it under that section, the NCTA said. “Even most proponents of must-carry status for Class A stations acknowledge that such stations do not qualify for such status under the Act,” it said. “But they contend there is an easy way to circumvent this statutory obstacle: Simply conduct a rulemaking proceeding” to add Class A channel slots to the FCC full- power station table and reclassify them as full-power. That runs “afoul of the language and the purpose of the statute,” the NCTA said.
Had Congress wanted to guarantee cable carriage to Class A stations, it could have done so in 1999 when the Community Broadcasters Protection Act created that category, the NCTA said. Citing advocacy group estimates that about 15 percent of Class A stations are owned by minorities, Verizon said neither diversity nor localism necessarily would be served by guaranteeing the stations pay-TV access. “The lack of benefit from a carriage mandate is all the more clear when the potential costs are taken into account,” the telco said. “As several commenters note, even robust systems have some capacity limits” at risk of being sapped by having to carry low-power broadcasters, it said. Required carriage would increase pay-TV companies’ programming costs, Verizon said. “Any new requirement to carry Class A stations would disregard the lines that Congress drew.”
That analysis is wrong, said the Community Broadcasters Association, representing the small stations. Creation of Class A carriage rights would adjust existing must-carry regulation and not create a new type of mandate, the group said. “Predictably, representatives of the cable television industry howled at the prospect of having to carry stations operated by locally owned small businesses that provide locally-based diverse programming not available on full power stations. You name the argument -- they threw it into the pot.” Fear of bandwidth scarcity “rings more and more hollow as cable companies migrate to compressed all digital service and as they continue to add new non-broadcast channel services,” the CBA said.
A far higher proportion of low-power stations than cable channels are minority owned, said Diversity and Competition Supporters. The group includes the Independent Spanish Broadcasters Association, the National Association of Black Owned Broadcasters and the Rainbow PUSH Coalition. Only three of 12 FCC diversity proposals drew significant opposition, the group said. Citing section 553(b) of the Administrative Procedure Act, the organization contested a Time Warner Cable suggestion that because the March notice only included a paragraph on the topic the FCC provided inadequate notice that it was considering a Class A must- carry rule. The FCC has “broad authority” to reclassify TV stations under section 303(a) of the Communications Act, the groups said: “The wholesale exclusion of all Class A television stations from must-carry would produce an insurmountable market entry barrier for minorities and other new entrants with Class A stations.”