"The Commission tentatively concluded earlier this year that a dual must carry requirement cannot pass muster under the First Amendment," NCTA stated. "It made clear that ‘the onus is on those who favor mandatory dual carriage to provide the necessary information to overcome this existing presumption.’ Nothing provided in the initial round of this proceeding comes remotely close to meeting this burden."
Moreover, broadcasters have failed to demonstrate that a digital must carry rule would have any effect in accelerating the transition from analog to digital broadcasting at all, according to an economic analysis submitted on behalf of NCTA by Dr. Gregory Rosston, the Deputy Director of the Stanford Institute for Economic Policy Research at Stanford University.
In fact, the government’s imposition of dual must carry could actually hinder the transition to digital, Rosston added. "In the absence of a digital must carry requirement, local over-the-air broadcasters might improve the quality of their digital offerings to get on the system," he wrote. "With a digital must carry rule, it is possible that local over-the-air stations will have a reduced incentive to invest in the quality of their digital programming."
Rather than seeking government-imposed solutions to the broadcasters’ digital transition, NCTA outlined the steady accomplishments and superiority of market-based solutions. The filing cited voluntary digital carriage agreements based on retransmission consent made by a number of cable multiple system owners.
"At this early stage - when many broadcasters have not even begun transmitting digital signals, most broadcasters have not yet determined how they will use and what they will provide over their digital channels, and many cable systems are still in the process of upgrading their systems to provide digital programming - these agreements are a promising indication that marketplace negotiations will result in the voluntary carriage of digital broadcast programming that is attractive to viewers," the filing stated.
Private, market-based, agreements are not only the statutory solution to the digital transition, they are the favored solution to providing cable customers with the programming and services they want. Government-imposed dual carriage puts at risk the delivery of new and innovative services. "Any of the finite bandwidth conscripted for the broadcasters comes at the expense of other uses," NCTA wrote. "The business plans of operators, programmer and other service providers - and, ultimately, the needs, interests, and demands of consumers - will be thwarted, whether the effect of dual must carry is to force operators to drop existing services or to curtail the development and offering of exciting new services that can only be offered over upgraded, high-capacity systems."
The National Cable & Telecommunications Association (NCTA), formerly the National Cable Television Association, is the principal trade association of the cable television industry in the United States. NCTA represents cable operators serving more than 90 percent of the nation’s cable television households and more than 150 cable program networks, as well as equipment suppliers and providers of other services to the cable industry. In addition to offering traditional video services, NCTA's members also provide broadband services such as high-speed Internet access and telecommunications services such as local exchange telephone service to customers across the United States.
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