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Policy

Martin Sounds Retreat on Must-Carry

6/23/2006 8:00 PM Eastern

Washington— Federal Communications Commission chairman Kevin Martin last week jettisoned a scheduled vote that could have mandated that cable operators carry new digital-TV stations from broadcasters on their systems. The mandate would have handed a lobbying victory to the National Association of Broadcasters.

In a political setback, Martin pulled the must-carry vote from the agency’s June 21 agenda on Sunday, June 18, without commenting. He left it to FCC spokeswoman Tamara Lipper to explain his reasons for sounding the retreat.

“There did not appear to be consensus for moving forward at this time,” Lipper said.

Multicast Must-Carry Timeline
May 25: FCC chairman Kevin Martin circulates must-carry order.
May 26: Robert McDowell confirmed as fifth FCC commissioner.
June 1: McDowell sworn in.
June 7: Martin postpones June 15 meeting to June 21 to give McDowell time to study carriage issue.
June 14: FCC’s June 21 meeting agenda released with multicast must-carry as item No. 1.
June 15: Martin tells broadcast lobbyists he has a must-carry majority.
June 18: Martin pulls must-carry from agenda.
Source: Multichannel News research

SIX SIGNALS

Martin’s rules would have forced cable operators to carry every free digital-TV programming service from broadcasters, a burden that could have meant six or more services per station. Current FCC rules require carriage of one programming service per station that demands cable carriage.

Adoption of the rules would have likely triggered a cable-led court challenge on First and Fifth Amendment grounds. When cable fought its losing battle against analog must-carry, the case ended up in the U.S. Supreme Court twice in 1990s.

With Robert McDowell’s June 1 arrival, Martin, a Republican appointee of President Bush, had his first GOP majority at the agency since taking the helm in March 2005.

Martin already had support on multicast must-carry from Republican FCC member Deborah Taylor Tate. McDowell’s support would have cemented victory. But where McDowell stood in the days leading up to the vote was unclear.

Two weeks ago, McDowell told some lobbyists he was undecided. But a broadcast lobbyist said that Martin scheduled the June 21 multicast must-carry vote confident that McDowell would back him. The agency’s two Democrats, Michael Copps and Jonathan Adelstein, oppose multicast must-carry in the absence of new, specific public-interest obligations on DTV stations.

“[Martin] told us [on June 15] he had the votes,” one broadcast lobbyist said last Tuesday. A Martin aide denied Martin made such a statement. Two days later, McDowell apparently informed Martin he couldn’t support multicast must-carry.

“McDowell called Martin on Saturday [June 17] and said, 'I’m not with you,’ ” the broadcast source said, adding McDowell raised statutory and constitutional concerns about increasing carriage demands on cable. A day later, Martin pulled the plug.

McDowell’s opposition is firm, meaning Martin is not expected to revive the issue at the FCC’s July public meeting. “It’s dead,” the broadcast lobbyist said.

Immediately after the FCC’s public meeting last Wednesday, a reporter asked McDowell why he wouldn’t support Martin.

“I’m not taking any questions today, but thank you for your interest,” McDowell said.

Communications lobbyists, who asked not to be identified, asserted that Senate Commerce Committee chairman Ted Stevens (R-Alaska) or his staff intervened at the FCC, urging McDowell not to endorse must-carry, while Stevens was attempting to address the issue in his pending telecommunications bill (S. 2686).

“That’s not true,” Stevens told reporters last Thursday, adding that his only comments on the subject came two weeks ago when he made it clear that he would support FCC adoption of the new cable-carriage rules.

“Other than that, I have not said anything about it,” he added. “I did see Martin personally and said, 'I hope he saw my public statement.’ He said he had.”

Stevens said he hadn’t ruled out addressing the must-carry issue in his telecommunications bill, adding, “It may come up.”

Under current law, cable operators are required to carry the “primary video” of each must-carry TV station. The FCC has interpreted “primary” to mean one programming service per station, ruling out multicast.

In the Stevens bill, the must-carry requirement has been changed from “primary video” to “video signal,” which some cable lobbyists believe could pave the way for the FCC to interpret the new language to mean multiple programming services.

DEMINT AMENDMENT

Last Thursday, the Senate Commerce Committee adopted an amendment sponsored by Sen. Jim DeMint (R-S.C.) that changed “video signal” to “primary video” for direct-broadcast satellite providers DirecTV Inc. and EchoStar Communications Corp., but not for cable operators. DeMint is negotiating with Stevens’ staff on making the same change for cable.

“This is new language,” a DeMint aide said, referring to video signal. “There is no need for new language.”

The FCC refused to impose multicast must-carry in 2001 and 2005, with Martin dissenting in 2005. But Martin wanted to reverse that policy and tried to do so at his first opportunity over cable’s stiff opposition. But his plan backfired, so much so that FCC officials later acknowledged that the decision to seek McDowell’s support so soon after his arrival probably was bad timing.Martin wasn’t specific about plans to revive multicast must-carry.

“I think the carriage of the full digital broadcast signals is the right policy,” he said. “If the commission were supportive of that, that’s what I would end up going forward doing.”

September