FCC to Nix Rule Requiring Cable to Carry Both Analog, Digital Broadcast Signals

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'Viewability' Rule to Sunset  

Key holding: Cable operators with hybrid, digital-analog systems must continue carrying both digital and analog broadcast TV signals until Dec. 12, 2012, after which the rule will sunset.

Impact: Rule will affect all cable subscribers with analog TV sets; however, the FCC will encourage cable operators to offer “small, affordable set-top boxes” to those subscribers.

By Paul Barbagallo  

The Federal Communications Commission soon will eliminate a rule that requires cable operators to carry both the digital and analog signals of local broadcast TV stations.

Under an order adopted unanimously by the FCC, all cable companies with hybrid, digital-analog systems must continue carrying stations' analog signals until Dec. 12, 2012, after which the rule will sunset. The order was adopted late June 11, and released June 12.

The digital/analog signal issue dates back to September 2007, when the commission adopted a dual “must carry” rule that required all cable operators to carry both analog and digital signals following the transition to digital broadcast television in 2009.

By statute, the Digital Transition and Public Safety Act of 2005, cable operators have been required to make local broadcasters' primary video and program-related material “viewable” by all of their subscribers. Under the FCC's 2007 decision, cable companies can choose to comply with the statute by either carrying the digital signal in analog format, or carrying the signal only in digital format, provided that all subscribers have the necessary equipment to view the broadcast TV content.

Put simply, the FCC's “viewability” rule was intended to ensure that cable subscribers with analog TV sets could continue to have access to all broadcast TV signals.

But, since then, operators and programmers have argued that the rule gives local broadcast stations an unfair and illegal advantage over them in securing carriage on cable systems.

Programmers in particular have alleged that the rule violates their First Amendment right to “speak” to cable subscribers when they are forced off, or kept off cable systems, because limited available channel space must be given to broadcasters under the dual must-carry rule.

Michael Powell, president of the National Cable and Telecommunications Association, which had lobbied the FCC to sunset the rule, lauded the agency's vote.

“With the majority of all households now enjoying digital services, the cable industry will maximize its bandwidth to provide innovative services that connect consumers to things they care about most,” he said in a statement. “And while some customers have yet to make the transition to digital, cable providers will continue to work hard to make that conversion as smooth as possible.”

Though it is eliminating the rule, the FCC is encouraging cable operators to offer “small, affordable set-top boxes” to consumers who still have analog TV sets.

The vote still comes as a blow to TV broadcasters, which had been asking the agency to extend the rule for three years.

“The National Association of Broadcasters remains concerned that today's [June 11] FCC decision has the potential to impose negative financial consequences on small local TV stations that are a source for minority, religious and independent program diversity across America,” said NAB spokesman Dennis Wharton, in a statement. “If that is the outcome, millions of viewers will be the losers.”

Wharton said NAB will review its options with its board of directors.

Commissioner Mignon Clyburn expressed similar concerns in her written statement. While she voted to adopt the order, she said the decision was not an “easy one.”

“It is of the utmost importance that stations are able to reach any and all cable viewers, regardless of whom or where they are,” Clyburn wrote. “Cable providers have committed to this office that they will make the transition as painless as possible and that if needed, set-top boxes will be widely available, at an extremely low (if any) cost, easy to get, and easy to install. I will hold them to that commitment." Clyburn also noted that she was able to get some language inserted that provides for "a remedy to resume analog carriage of channels should consumer outcry and confusion rise to a noticeable level.''

The June 11 FCC order is online at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-12-59A1.pdf.