DIRECTV Reply Comments 10-11-05
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Before the FEDERAL COMMUNICATIONS COMMISSION Washington, D.C. 20554 In the Matter of: Annual Assessment of the Status of MB Docket No. 05-255 Competition in the Market for the Delivery of Video Programming REPLY COMMENTS OF DIRECTV, INC. As has become the norm in this proceeding, parties from all sectors of the media industry have discussed a wide range of topics and attempted to advance numerous agendas in their opening comments in this docket. DIRECTV, Inc. (“DIRECTV”) by no means criticizes this – it is the nature of an open-ended Notice of Inquiry proceeding such as this. The vast majority of these issues, however, are the subjects of other proceedings. DIRECTV thus believes that, while these issues can be catalogued in this proceeding, it is best to address them on the merits in their respective proceedings, where each issue can receive the detailed attention it deserves.1 DIRECTV feels compelled, however, to reply briefly to one set of comments. The Association of Public Television Stations (“APTS”) submitted comments describing 1 The American Cable Association (“ACA”), for example, resurrects an earlier request to require satellite carriers to offer ACE Members retransmissions of local broadcast stations on a wholesale basis. See ACA Comments at 18-19. DIRECTV has addressed this proposal at some length earlier this year, and the Commission has rejected it. See SHVERA Section 208 Report to Congress, Retransmission Consent and Exclusivity Rules: Report to Congress Pursuant to Section 208 of the Satellite Home Viewer Extension and Reauthorization Act of 2004, ¶¶ 77-83 (Sept. 8, 2005), available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DOC-260936A1.pdf. As nothing about ACA’s proposal has changed, nothing about DIRECTV’s response has changed either. 1 why it believes that existing law already requires satellite operators “to carry all free, over-the-air digital signals where local television stations are being carried pursuant to SHVIA.”2 Of course, the Commission cannot require any such thing in this proceeding. And DIRECTV expects to respond fully to APTS’s proposal in further proceedings in the DBS Carriage docket.3 Yet DIRECTV would take this opportunity to make the following two observations. First, APTS’s legal reasoning is incorrect. Second, even if read to impose the least possible burden on satellite carriers, APTS’s view of the law would require the immediate shutdown of local service in markets throughout the country. The result would be a significant reduction in the number of local markets served and a corresponding reduction in carriage of APTS’s member stations. This would cause immeasurable harm to localism – an outcome that neither APTS nor the Commission should support. I. APTS’S LEGAL ANALYSIS IS INCORRECT Section 338(a)(1) of the Communications Act (the “Act”) provides in pertinent part: Each satellite carrier providing, under section 122 of title 17, United States Code, secondary transmissions to subscribers located within the local market of a television broadcast station of a primary transmission made by that station shall carry upon request the signals of all television broadcast stations located within that local market . .4 2 APTS Comments at 14. 3 The question of satellite carriage obligations concerning a station’s digital signal is currently pending before the Commission. See MB Docket Nos. 98-120 and 00-96; see also WHDT v. EchoStar, 18 FCC Rcd. 396 (Med. Bur. 2003). 4 47 U.S.C. § 338(a)(1). 2 Thus, argues APTS, satellite carriers must carry (and indeed, have always been required to carry) the analog and digital signals of all broadcasters in any market they serve.5 But the law says no such thing. To begin with, section 338(a)(1) tells us only which broadcasters’ signals satellite operators must carry. The question of what signals must be carried (i.e., digital or analog, single-stream or multicasting) is another matter altogether, and is governed by another provision of section 338. Section 338(j) provides that the Commission’s regulations “shall include requirements on satellite carriers that are comparable to the requirements on cable operators under sections 614(b)(3) and (4) and 615(g)(1) and (2).”6 The cited provisions, in turn, require carriage of only the “primary video” provided by a broadcaster, which the Commission has determined to consist of a single, analog programming stream.7 A “comparable” requirement for DIRECTV can include no more. APTS, however, argues that 338(a)(1)’s requirement to “carry on request the signals of all television broadcast stations” is a requirement to carry all digital signals regardless of what section 338(j) might say.8 To support this claim, APTS cites the Commission’s Alaska-Hawaii Order interpreting the word “signals” from another part of section 338 as indicating a multicast and HD carriage requirement.9 If “signals” means 5 APTS Comments at 17. 6 47 U.S.C. § 338(j). 7 47 U.S.C. §§ 534-35; Carriage of Digital Television Broadcast Signals: Amendments to Part 76 of the Commission’s Rules, Second Report and Order and First Order on Reconsideration, 20 FCC Rcd. 4516, 4536 (2005) (“Carriage Recon. Order”). 8 APTS Comments at 15 (emphasis added). 9 Implementation of Section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 to Amend Section 338 of the Communications Act, Report and Order, FCC 05-159, MB Docket No. 05-181 ¶ 8 (Aug. 23, 2005) (“Alaska-Hawaii Order”). 3 HD and multicast carriage in section 338(a)(4), APTS argues, it must mean the same thing in section 338(a)(1).10 Even setting aside all other issues DIRECTV might have with this line of reasoning, 11 APTS’s argument fails on its own terms. Section 338(a)(4)’s Alaska-Hawaii language directs satellite carriers to carry the digital “signals” (plural) of “each television broadcast station” (singular) in Alaska and Hawaii. 12 The Commission (erroneously, in DIRECTV’s view)13 concluded that this language indicated a requirement to carry multiple signals from each station – i.e., HD and multicasting. Even accepting this logic, it makes no sense to demand a parallel interpretation of section 338(a)(1)’s language requiring carriage of “signals” (plural) of “all television broadcast stations” (plural). Indeed, if Congress intended for “signals of each station” to require multicasting, one might more reasonably conclude that it intended “signals of all stations” not to require multicasting. In any event, APTS’s invocation of “the-same-words-must-always-have- the-same-meaning” canons of statutory construction is inapplicable where, as here, the words themselves are not the same.14 10 APTS Comments at 16. 11 To take just a few examples, APTS’s interpretation renders section 338(j) a nullity. If use of the word “signals” in section 338(a)(1) really required analog and digital must carry, there would be no need for Congress to tell the Commission to issue comparable cable and satellite carriage requirements. Such a requirement, moreover, would raise serious constitutional issues. 12 See 47 U.S.C. § 338(a)(4) (requiring satellite operators to “retransmit the signals originating as analog signals of each television broadcast station located in any local market within a State that is not part of the contiguous United States, and (B) within 30 months after such date of enactment retransmit the signals originating as digital signals of each such station”) (emphasis added). 13 See, e.g., DIRECTV, Inc., Petition for Partial Reconsideration, MB Docket No. 05-181 (filed Sept. 30, 2005). 14 See APTS Comments at 17. 4 II. APTS’S PROPOSAL WOULD RESULT IN A LOSS OF LOCAL SERVICE Far more troubling than APTS’s reading of section 338 of the Act is its disregard for the consequences of this reading. The least APTS seems to be demanding is that satellite operators immediately be required to carry every broadcaster’s HD and multicast signals in every market where they now offer local broadcast service.15 As DIRECTV has already made clear in several proceedings, the number of markets in which DIRECTV can roll out HD local service would be dramatically reduced even if such a requirement were phased in after DIRECTV has launched service from several next- generation satellites at a cost of billions of dollars.16 But APTS calls for such a requirement today, making its request impossible to comply with. Setting aside its speculation about DIRECTV’s future satellite capacity, 17 APTS should know that the spot beams with which DIRECTV provides service today are now full. And under the carry-one, carry-all rules, satellite operators can only serve markets in which they can carry all qualifying signals. APTS is thus really asking for a rule that, by its very terms, would require DIRECTV to shut off local broadcast service in the 15 See APTS Comments at 17 (urging the Commission to “ensure full carriage of all HD and multiple SD content carried on the signals of all television broadcast stations carried pursuant to Section 338.”). 16 See, e.g., Letter from William M. Wiltshire to Marlene H. Dortch, CS Docket No. 98-120 (June 30, 2005); Letter from William M. Wiltshire and Michael Nilsson to Marlene H. Dortch, CS Docket No. 98-120 (Aug. 23, 2005). 17 APTS correctly notes that DIRECTV intends to launch additional satellites, and its strategic goal is to use these satellites to provide digital signals in many markets. APTS Comments at 19-20. APTS seems to think, however, that the existence of these satellites can justify its proposed carriage requirement. This is not so. Even using these satellites, and the modulation and compression techniques described by APTS, id.