Cornell Journal of Law and Public Policy Volume 15 Article 2 Issue 1 Fall 2005 Digital Must-Carry & (and) the Case for Public Television Justin Brown Follow this and additional works at: http://scholarship.law.cornell.edu/cjlpp Part of the Law Commons Recommended Citation Brown, Justin (2005) "Digital Must-Carry & (and) the Case for Public Television," Cornell Journal of Law and Public Policy: Vol. 15: Iss. 1, Article 2. Available at: http://scholarship.law.cornell.edu/cjlpp/vol15/iss1/2 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Journal of Law and Public Policy by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. DIGITAL MUST-CARRY & THE CASE FOR PUBLIC TELEVISION Justin Brown, Ph.D.t ABSTRACT This article addresses the must-carry rules in the context of public broadcasting and the digital television transition. Upon examining the litigation, legislative intent, and rulemaking involving the must-carry rules as well as the economic constraints public television ("PTV") faces, this article argues that PTV should be afforded multicast carriage on cable systems and reviews the voluntary carriage agreement reached be- tween cable operators and public broadcasters. Even without such an agreement, this article contends that a digital multicast must-carry policy for non-commercial broadcasters would be constitutional under the First Amendment. INTRODUCTION ............................................. 74 I. THE DIGITAL TELEVISION TRANSITION ........... 76 II. MUST-CARRY RULES ............................... 81 A. MUST-CARRY RULES AS CONTAINED IN THE 1992 CABLE ACT ........................................... 81 B. ANALOG MUST-CARRY RULES SURVIVE JUDICIAL REVIEW ................................................ 87 III. DIGITAL MUST-CARRY POLICY ..................... 91 A. DTV MUST-CARRY FIRST REPORT AND ORDER ....... 91 B. DTV MUST-CARRY SECOND REPORT AND ORDER .... 94 IV. THE NATURE OF PUBLIC TELEVISION ............. 96 A. PUBLIC TELEVISION'S DIGITAL MULTICASTING STRATEGY ............................................ 99 V. PTV DIGITAL CABLE CARRIAGE POLICY .......... 102 A. VOLUNTARY DIGITAL CARRIAGE AGREEMENT BETWEEN CABLE AND PTV ......................... 102 B. WHY PTV DIGITAL CARRIAGE WOULD BE CONSTITUTIONAL UNDER THE FIRST AMENDMENT .... 102 CONCLUSION ................................................ 108 t Assistant professor, department of Telecommunication, University of Florida. The author wishes to acknowledge the valuable contributions of Anne Pizzato, Brian Weiss & Neil Weiss who helped research this article during an independent study project while they were undergraduate students at the University of Florida. 74 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 15:73 INTRODUCTION While the viewing public anticipates the eventual promise of high definition ("HD") and digital television ("DTV"), thus far the majority of commercial broadcasters, cable operators, and direct broadcast satellite ("DBS") providers have failed to reach any substantive agreements on the airing of digital broadcast channels.1 Even though approximately eighty-five percent of the country accesses local stations through a mul- tichannel video program distributor,2 the Federal Communications Com- mission ("FCC") has ruled that cable operators need only carry an existing analog or a digital-only television station. 3 Such a ruling means that cable operators are required to "carry only one of the multiple '4 streams that are multicast over a digital signal." The FCC regulates cable operators ancillary to broadcasting. As a result, cable operators face significant rules designed to preserve over- the-air television, 5 including providing access and channel capacity to carry the signals of local stations. The Cable Television Consumer Pro- tection and Competition Act of 1992 ("'92 Cable Act") 6 codified the 7 "must-carry" rules. The must-carry rules require local cable systems to carry broadcast television stations on respective local cable systems or, in the case of commercial broadcasters, negotiate retransmission consent with the cable operator, whereby stations attempt to receive copyright 1 See, e.g. Andrea K.Walker, Fans with HDTVfume at Super Bowl Picture, THE BALTI- MORE SUN, Jan. 28 at 1A; Ted Heam, Broadcasters are Gunning for Multicast, MULTICHAN- NEL NEWS, Jan. 31, 2005 at 20. 2 In the Matter of Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, Eleventh Annual Report, 20 F.C.C.R. 2755, 2759 (2005) [hereinafter Eleventh MVPD Video Competition Report]. 3 In the Matter of: Carriage of Digital Television Broadcast Signals, First Report and Order and Further Notice of Proposed Rulemaking, 16 F.C.C.R. 2598, 2599-01 (2001) [herein- after DTV Must-Carry R&O/FNPRM]; In the Matter of: Carriage of Digital Television Broadcast Signals, Second Report and Order and First Order on Reconsideration, 20 F.C.C.R. 4516, 4518 (2005) [hereinafter DTV Second R&O]. 4 Aaron Heffron and Daniel Odenwald, Multicasting Breaks Down 24-Hour Limit on a Day, CURRENT, March 26, 2001, at http://www.current.org; see Jeffrey Kraus, Must-Carry Loose Ends, CED, May 2005 at 54. 5 See Matt Jackson, Regulating Cable Communications, in COMMUNICATION AND THE LAW (W. Wat Hopkins, ed., 2005) at 205-23. 6 Cable Television Consumer Protection and Competition Act of 1992, Pub. L. No. 102- 385, 106 Stat. 1460 (codified in scattered sections of 47 U.S.C.). The '92 Cable Act amended various portions of the 1934 Communications Act. For an overview of the must-carry provi- sions, including history, relevant litigation, and First Amendment implications, see generally Laurence H. Winer, The Red Lion of Cable, and Beyond?-Tumer Broadcasting v. FCC, 15 CARDOZO ARTS & ENT. L.J. 1 (1997); Gary S. Lutzker, The 1992 Cable Act and the First Amendment: What Must, Must Not, and May Be Carried,12 CARDozo ARTS & ENT. L.J. 467 (1994). 7 47 U.S.C. § 534 (2000). 2005] DIGITAL MUST-CARRY payments for the carriage of their programming. 8 The FCC has identi- fied numerous concerns related to must-carry and retransmission consent in the digital context,9 most notably the method of calculating cable channel capacity,' 0 the definition of "primary video,"" and "program- relatedness," 12 as well as the digital signal format or quality that a local station offers (e.g., material degradation). 13 Unlike their commercial counterparts, public television ("PTV") stations recently reached a multicast agreement with cable operators that enable the carriage of up to four simultaneous digital program streams. 14 The issue of securing carriage for multicasting on local cable systems is of particular importance to PTV stations that have plans to offer an array of simultaneous programming options to viewers. 15 Unlike commercial broadcasters, PTV stations are non-profit entities that rely on viewer pledge drives, government funding and sponsor underwriting to pay for the operations and programming aired free of charge in service to local communities across the nation. 16 Without secured space on a local cable system, many PTV stations fear they will be unsuccessful in making the digital transition because they would lack the full advantage of the edu- cational and diverse programming opportunities that the DTV spectrum provides. 17 In light of such concerns, this article will review the importance of cable carriage and application of the must-carry rules to non-commercial PTV stations. This article attempts to make a special case for PTV and digital must-carry. Through its defense of a multicast digital must-carry 8 47 U.S.C. § 325(b) (2000). For an overview of cable television and retransmission content regulation, see generally Charles Lubinsky, Reconsidering Retransmission Consent: An Examination of the Retransmission Consent Provision (47 U.S.C. § 325(b)) of the 1992 Cable Act, 49 FED. COMM. L.J. 99 (1996). 9 For an overview of the constitutional issues of applying the must-carry rules to digital television, see Albert N. Lung, Must-Carry Rules in the Transition to Digital Television: A Delicate ConstitutionalBalance, 22 CARDOZO L. REv. 151 (2000). 10 DTV Must-Carry R&O/FNPRM, supra note 3, at 2652-55. ' 1 Id. at 2619-22. 12 Id. at 2651-52. 13 Id. at 2627-29. 14 See Press Release, National Cable Telecommunications Association, Public Television and Cable Ratify Digital Cable Agreement (Apr. 14, 2005) at http://www.ncta.com; Press Re- lease, Association of Public Television Stations, APTS and NCTA Announce Historic Cable Carriage Agreement, Association of Public Television Stations, (Jan. 1, 2005) at http:// www.apts.org. 15 See Andrew D. Cotlar, The Road Not Yet Traveled: Why the FCC Should Issue Digital Must-Carry Rules for Public Television "First", 57 FED. COMM. L.J. 49, 54-55 (2004). 16 See 47 U.S.C. § 521 (note following) (Congressional Findings and Policy for Pub. L. 102-385 §2(a)(12)). 17 See Cotlar, supra note 15, at 57; see also Dionne McNeff, Principlesof Puffery? The Validity of the Cable Industry's Dual CarriageArguments and Their Impact on Public Televi- sion in the Digital Television Future, 13 COMMLAW CONSPEcTUs 169, 171-72 (2004). 76 CORNELL JOURNAL OF LAW AND PUBLIC POLICY [Vol. 15:73 policy for non-commercial stations, this article revisits the legislative his- tory and findings of the '92 Cable Act and discusses the economic reali- ties and constraints