Today, each of the four major broadcast owners has ownership in a dozen or more cable networks that share programming, promotion and management alongside their broadcast networks. “This shift has profound implications in business terms. [But it also] means that the special status broadcasting has held in First Amendment policy debates - debates like must carry - is disappearing. Broadcasters know this,” Sachs said.
Factors that narrowly supported the Supreme Court’s 5-4 decision in Turner Broadcasting System v. F.C.C. that affirmed must carry in the analog universe do not apply in the case of dual must carry, Sachs said. “Whatever the long-term viability of the Turner decision, an additional digital must carry requirement during the transition from analog to digital would serve none of the government interests identified in Turner,” Sachs explained.
“The fact that a dual must carry requirement would most likely be unconstitutional does not mean, however, that cable operators are not interested in carrying new and innovative digital programming. Cable operators will carry digital programming consumers want, and that certainly includes broadcaster offerings, especially if broadcasters make good on their HDTV promises,” Sachs added. “But broadcasting is not the unique service it was even 10 years ago. And it should not be entitled to special treatment under the First Amendment - especially when special treatment shuts out the speech of others.”
Sachs encouraged broadcasters to develop new and innovative programming that consumers want, and to shift their focus from an unlikely grant of dual must carry (a legal requirement that cable carry both the analog and digital versions of the same programming) to market-driven negotiations for carriage. The cable industry already has committed to carrying broadcasters’ primary signal - whether it be analog or digital - throughout the digital transition.
One obstacle to the digital transition is the lack of compelling programming needed to drive it, Sachs said. “What most commercial broadcasters do not have is a business plan for how to use their digital spectrum,” Sachs added. He pointed, however, to a notable exception: the efforts by public broadcasters to develop new digital programming.
Sachs cited public broadcaster plans to telecast at least one formal educational digital service, noting that three out of four public stations plan to offer two or more multicast education services, such as K-12 instructional programming, job training or college courses. Other plans call for expanded children’s programming, local public affairs, foreign language programming, or teacher training.
“Public broadcasters have negotiated a voluntary digital carriage agreement with AOL Time Warner, an agreement, I might suggest, that is likely to become a model for other cable/public television alliances,” Sachs said. “Why? Because public TV has a vision for using its digital spectrum,” Sachs said.
In his remarks, Sachs also noted recent federal court cases in Florida on forced access, in California on franchise transfers, and in the D.C. Circuit on ownership limits that have strengthened cable’s First Amendment protections. Additionally, he said, the cable industry recorded another First Amendment victory when the FCC tentatively concluded in January that requiring operators to carry two versions of every broadcast station infringes upon cable First Amendment rights.
NCTA is the principal trade association of the cable industry in the United States, representing cable operators serving more than 90 percent of the nation’s cable television households. It also represents more than 100 cable program networks as well as equipment suppliers and providers of other services to the cable industry. (www.ncta.com).