Fordham Law Review Volume 42 Issue 1 Article 2 1973 Cable Television and the Promise of Programming Diversity D. Bruce Lapierre Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation D. Bruce Lapierre, Cable Television and the Promise of Programming Diversity, 42 Fordham L. Rev. 25 (1973). Available at: https://ir.lawnet.fordham.edu/flr/vol42/iss1/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. CABLE TELEVISION AND THE PROMISE OF PROGRAMMING DIVERSITY* D. BRUCE LAPIERREt I. INTRODUCTION IN 1972 the Federal Communications Commission (FCC) issued a lengthy report and promulgated a comprehensive set of regulations governing cable television. The commission's action was intended to re- solve years of indecisive balancing of the proper relationship between cable and broadcast television and to establish a new role for cable tele- vision in the provision of television programming and communications services. In Part II, this article will explore briefly the technology of cable television, the growth and status of the cable industry, and the potential of this new communications service to restructure the existing framework of information exchange. Part III will direct attention to the FCC's regulation of cable television from its inception through the com- prehensive rulemaking of 1972. With this background, Part IV will evalu- ate cable's promise of diversified television programming and the FCC's cable-casting rules which will guide the potential metamorphosis of the television medium. II. CABLE TELEvIsION: TECHNOLOGY, INDUSTRY, POTENTIAL The phenomenon of cable television is widely believed to hold forth the promise both of radically new television programming and of a variety of two-way communications services that would permit individuals to con- duct a large portion of their daily lives from a console in their living rooms. Although the technology capable of fulfilling these promises exists, the cable television industry is mired in operational realities divorced from its technological potential. Movement toward achieving the technological potential will be accompanied initially by an opportunity for an expanded range of television programming and only in the more distant future by the possibility of advanced two-way communications services. * This Article was the co-winner of the 1973 E.B. Convers Prize at Columbia University School of Law. The author wishes to note that research was completed on or about Jan. 15, 1973, but substantial developments subsequent to this date and prior to publication are incorporated. t A.B., mnagna cum laude, Princeton University; J.D., 1973 Kent Scholar, Columbia Uni- versity School of Law. Mr. LaPierre is presently law clerk for Judge Milton B. Conford, Presiding Judge for Administration, Superior Court of New Jersey, Appellate Division. FORDHAM LAW REVIEW [Vol. 42 A. The Technology A cable television system' is a facility that, unlike conventional over- the-air broadcasting, delivers television signals directly by wire to the viewer's receiver. The physical plant of a cable television system may be divided for descriptive purposes into the headend and the distribution system.' The headend transmits the television signals carried on the dis- tribution system to the viewers' homes, but the signals themselves may be derived from a number of sources. For example, the signal of a local broadcasting station may be picked up by an antenna and fed into the headend, or the signal of a more distant conventional broadcasting station may be picked up by an antenna and transmitted to the headend by a microwave connection. A third source of signals is a television studio connected directly to the headend by the cable system operator. The distribution system is composed of coaxial cable3 trunk and feeder lines placed in underground conduits or on telephone poles which form a "tree network ' 4 carrying the signals from the headend to the area to be served. When an individual decides to subscribe to cable service, his tele- 1. Until 1972, cable television systems generally were known as community antenna tele- vision (CATV) systems; however, a shift to the more inclusive term "cable television (CTV) system" recommended by the Federal Communications Commission (FCC) is appropriate In light of the broader functions now proposed for these facilities. Cable Television Report and Order on Rules and Regulations Relative to CATV Systems, 36 F.C.C.2d 143, 144 n.9 (1972). In this Article the older terminology will be used where appropriate in the context. A CTV, or alternatively a CATV, system is defined as "[alny facility that, in whole or in part, receives directly, or indirectly over the air, and amplifies or otherwise modifies the signals transmitting programs broadcast by one or more television or radio stations and distributes such signals by wire or cable to subscribing members of the public who pay for such service, but such term shall not include (1) any such facility that serves fewer than So subscribers, or (2) any such facility that serves only the residents of one or more apartment dwellings under common ownership, control, or management, and commercial establishments located on the premises of such an apartment house." 47 C.F.R. § 76.5(a) (Oct. 1972). The FCC is contemplating initiating a rulemaking which would modify this definition to include cable systems in apartment buildings or condominiums. Television Digest With Consumer Elec- tronics, 12 Weekly Television Digest, Oct. 16, 1972, at 2 [hereinafter cited by volume as Weekly TV Digest]. 2. The description of cable television technology is drawn primarily from the final report of the Sloan Commission on Cable Communications. Sloan Commission on Cable Com- munications, On The Cable: The Television of Abundance 11-16 (1971) [hereinafter cited as Sloan]. 3. Coaxial cable is the "wire" of cable television. It is composed of a small diameter, inner conductor, an insulating layer of plastic foam, a tubular outer conductor, and a protective sheath. Id. at 13 (diagram). 4. The nature of a "tree network" is perhaps best understood in contrast with the more familiar "hub network" of telephone service. In a tree network each television set is connected with the headend; however, unlike the telephone system, there is no switching center at a hub by which individual subscribers may be interconnected. Id. at 14 (diagram). CABLE TV vision set is connected by a drop line which simply taps into the trunk and feeder lines to draw off the television signals that are being carried. Al- though coaxial cable is theoretically capable of carrying forty television channels, the number of television signals that may actually be utilized depends on the sophistication of the distribution system and related equip- ment. A basic single cable distribution system is restricted to offering signals only on the twelve standard very high frequency (VHF) channels of the normal television receiver. The capacity of coaxial cable to carry forty channels on different VHF frequencies is rendered useless by the fact that existing television receivers are designed to handle only the twelve stan- dard VHF channels used in over-the-air broadcasting.' A two-cable dis- tribution plant connected to standard television sets can increase channel capacity to twenty-four with the addition of a switch which allows the subscriber to select between the two cables.' In practice, the twelve and twenty-four channel configurations for single and dual cable systems are upper limits, as interference problems, especially in urban areas, reduce the number of usable channels.7 Through use of a third type of distribution plant-an augmented channel system--cable can carry additional non-standard VHF fre- quencies by introducing into the system either a channel converter9 at- tached to the subscriber's television receiver or a special television set designed to handle both standard and non-standard VHF frequencies."0 Notwithstanding coaxial cable's forty channel capacity, the number of signals that can actually be transmitted by a single cable augmented channel system is limited by the capacity of present converters (twenty- five to twenty-six channels)'" and by the capacity of the amplifiers (ap- 5. Cable systems are unable to take advantage of the high channel capacity of television receivers equipped to receive UHF signals because coaxial cable cannot carry these frequencies. Ward, Present and Probable CATV/Broadband-Communication Technology, in Sloan, app. A, 179, 185 [hereinafter cited as Ward]. 6. Id. at 188. 7. Id. at 185-87. 8. Id. at 192-95. 9. By performing channel tuning in a shielded environment and by showing the signals on a "quiet channel," the converter reduces interference from direct over-the-air pickup and from adjacent channels and avoids the receiver's limited tuning capacity of 12 VHF fre- quencies. Id. at 192; 11 Weekly TV Digest July 12, 1971, at 9-10. 10. The National Cable Television Association (NCTA) has filed recommendations on receiver standards for all-cable channel sets with the FCC. 11 Weekly TV Digest, June 14, 1971, at 8. Before such sets can be designed, it is essential that there be standardization of cable channels. Id., July 12, 1971, at 9. At least one television set manufacturer, Philco, has undertaken the production of modified receivers which can handle all of the VHF frequencies that are used by one particular CTV system. Id., Sept. 20, 1971, at 7-8. 11. Ward, supra note 5, at 192. FORDIJAM LAW REVIEW [Vol. 42 proximately twenty channels)" that must be installed on all cable lines to maintain signal strength.