FCC members seem open to changing a controversial DTV order set for a vote Tuesday, after intense lobbying against it by cable operators (CD Sept 10 p1), agency and industry officials said. Eighth-floor negotiations over the order likely will go down to the wire. The outcome was up the air late Monday. The rulemaking could be pulled from the meeting agenda if Chairman Kevin Martin can’t get the support he needs. Martin has told colleagues he wants quick action on the order, which would require cable operators to carry some TV stations’ analog and digital signals in light of the looming DTV transition, the sources said. Meanwhile, a cable franchise order probably will be voted on soon even though it was dropped from the agenda, they said. And a program access order that the other four commissioners asked Martin to pull remains under consideration, an FCC official said.

An FCC notice on cable and broadcast bundling of channels in carriage deals probably gives Chairman Kevin Martin another platform to raise the issue of a la carte, agency and industry officials said. Martin circulated the notice two weeks ago with an eye toward a quick vote on it and a related program access order (CD Aug 24 p2). The notice doesn’t specifically require cable operators, satellite providers and other pay-TV companies to sell channels individually, FCC and industry officials said. But they said that point is indirectly raised because the notice asks whether TV stations and some cable channels can require pay TV providers to carry them with affiliated channels.

An order letting the FCC void exclusive video contracts between apartment building owners and pay-TV providers (CD July 6 p2) began circulating late Thursday on the eighth floor, according to FCC and industry officials. The draft from Chairman Kevin Martin’s office seems to stick closely to preliminary FCC findings that the agency can intervene in some such cases, said several industry officials. In seeking public comment March 27, the commission said it “tentatively” found that it can regulate exclusives when it finds they “impede competition and impair deployment of services.”

FCC Chairman Kevin Martin lacks ready-made support for a so-called dual-carriage order that began circulating late Tuesday in time for a vote at the Sept. 11 meeting (CD Aug 23 p1), said several agency officials. They said at least three other commissioners have not thrown their support behind mandating cable operators provide both analog and digital signals of must-carry stations to analog subscribers after the DTV transition. “It’s uncertain what the vote will be,” said an FCC official. The order hews closely to a May 4 rulemaking notice proposing cable operators carry all of TV stations’ digital program bits containing information, said FCC officials. Bits without data need not be carried.

Debate on banning exclusive programming deals is heating up at the FCC (CD Aug 20 p12) as cable operators, satellite providers and other pay-TV companies pump up their lobbying. Small cable operators and EchoStar are meeting with Media Bureau officials and commissioners’ aides to argue for a minimum of a five-year extension of the ban, industry lawyers said. NCTA and members including Comcast and Time Warner Cable have asked the commission to let the rules die Oct. 5, when they sunset, with more visits from emissaries from large cable operators expected. Comcast calls exclusivity bans a relic because cable operators face growing competition from satellite and video Web streaming.

The FCC cleared the way for oral argument on a video franchise order to be heard shortly after Nov. 1, when all documents in Alliance for Community Media v. FCC are due to the 6th U.S. Circuit Court of Appeals in Cincinnati. The commission, NCTA, USTelecom and other parties likely to file in the case said they won’t oppose municipalities’ request to put oral arguments on a fast track, according to court papers and a lawyer involved in the case. The 6th Circuit hasn’t decided on that. Municipal groups claim a March 5 FCC order streamlining video franchising usurped city and county oversight over Bell and other pay-TV providers. The FCC and carriers claim Communications Act authority for the FCC move. The sides expect the court to hear oral arguments because the case raises questions of federal versus local oversight (CD April 9 p3). The next deadline is Sept. 17, when respondents’ briefs are due from the FCC after a delay of about a month that the agency got. USTelecom and members including AT&T and Verizon likely will file briefs supporting the FCC, said Alan Fishel, attorney for the Alliance. Final briefs are due Nov. 1, and his client wants arguments to occur as soon as possible after that, he said. The alliance wants speedy oral arguments due to the FCC order’s potentially wide impact. “The breadth and scope of this order is staggering,” said an Aug. 13 court filing by the group. “The order preempts local laws and practices throughout the country.”

Cable and some Bells squared off with broadcasters over whether the FCC should make pay-TV providers carry all digital program bits transmitted by stations. In reply comments to a commission dual carriage rulemaking (CD July 18 p10), NCTA and several members agreed with AT&T and Verizon that there are no grounds for changing FCC program degradation rules. Under agency rules, the quality of broadcast channels carried on pay TV must be as good as that of cable networks’ own material. In April, the FCC proposed moving to an “objective” measure of “material degradation.” The agency asked whether it should require that video providers carry all content bit data encoded in broadcast signals.

The coming months may see an accord between broadcasters and public interest advocates on how to translate emergency warnings into Spanish and other languages, said participants in meetings at the FCC on the alerts. Tuesday, the commission released a summary of the June 14 first round of negotiations brokered by the Public Safety Bureau. The minutes show some common ground between industry and public interest groups (CD Aug 15 p11). Parties on either side acknowledge a shared sense of urgency about clarifying the protocol under which broadcasters warn listeners in languages other than English when foreign-language stations are knocked off the air.

Nickelodeon won’t rent its cartoon and other characters for food ads unless products meet “'better for you’ criteria,” President Cyma Zarghami said Wednesday in a letter to House Telecommunications Subcommittee Chairman Edward Markey, D-Mass. The character licensing guidelines will be part of all deals Nickelodeon signs starting January 2009. The guidelines will exclude “a limited number of occasional treats designed for special occasion/celebration purposes” including birthday parties and holidays, Zarghami said. The healthy-ad pledge and exceptions resemble those Discovery announced Monday (CD Aug 14 p12). Markey said he hopes more companies make similar moves that “address childhood obesity issues.” Nickelodeon is not acting to because Markey is interested in the topic, a company spokesman said, adding that the company chose to highlight its plans in a letter sent to him and FCC officials and senators serving on a task force on youth obesity and advertising.

Broadcasters asked the FCC to clarify that sales of ads in bulk through third-party websites (CD July 9 p11) shouldn’t be reflected in the rates that radio and TV stations offer to federal candidates. NAB, 47 state broadcast associations, Gannett, Media General and other companies said three decades of FCC precedent mean that ads sold through nonbroadcast networks should not be subject to the lowest unit charges (LUC). At stake is whether broadcasters must directly offer politicians rates that could be even lower for airtime, because the Internet auction sites offer advertisers lower prices than they could get if they bought commercials from individual stations. Also at stake is the development of what many FCC filings referred to as “nascent” industry of Google’s dMarc Broadcasting, Bid4Spots, SoftWave Media Exchange and others that sell unwanted airtime.