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Digital must/mustn't-carry

Here's a multiple-choice test: Digital must-carry is A) unconstitutional and unnecessary, B) absolutely essential if free over-the-air TV is to survive, or C) a political football that regulators would probably just as soon punt.

The answer? Depends on whom you ask. The cable industry, and the FCC tentatively, have picked A, broadcasters and consumer electronics manufacturers are equally convinced it's B, and the FCC would likely take C if it could.

Both the cable and broadcast industries last week filed reply comments to the FCC in the ongoing battle over whether cable operators should have to carry both broadcasters' analog and digital signals during the transition to digital TV. So far, the cable side has the upper hand, thanks to the FCC's conclusion in January that it had constitutional problems with dual must-carry, but FCC Chairman Michael Powell and his new Cable Services Bureau chief, Ken Ferree, have indicated that they want to see a little more give and a little less take from the cable industry on the issue.

Meanwhile, neither side is budging from its original position.

The cable industry says that any dual-carriage requirement is unconstitutional and would stifle innovation and investment in the cable industry. Broadcasters—including the National Association of Broadcasters, the Association of Local Television Stations and the Association for Maximum Service Television—argue that, without dual must-carry, free over-the-air broadcasting will fail.

"Cable alleges that stations insufficiently popular to secure voluntary carriage will do nothing to sell digital sets and thus their carriage is unimportant to the transition," broadcasters wrote. "But the stations that cannot reach voluntary carriage agreements are the ones in the most need of must-carry's access to the audience to build their DTV futures." Behind the scenes, broadcasters are working on alternative carriage plans to present to the FCC that will help force cable's hand.

Cable is sticking with the view that it should be required to carry only one broadcast signal, whether analog or digital, and says broadcasters need to take responsibility for their own transition. "It was, after all," wrote NCTA, "the broadcasters who sought a second channel of scarce spectrum, at no charge, to provide digital programming.

"Until the government gave the broadcasters this spectrum," the cable group continued, "there was no apparent threat to the preservation of broadcast stations for over-the-air viewers—especially since cable operators were already required to carry virtually all existing analog stations. To the extent that giving broadcasters a second channel and requiring them to use it has somehow undermined the government's interest in preserving the availability of over-the-air television, it is the broadcast industry's own doing."

Broadcasters are flanked by consumer electronics manufacturers, which want to start selling large quantities of digital televisions.

"Without assurance that digital broadcast signals will reach the 70 million American households that rely on a cable signal," said Michael Petricone, vice president of technology policy for the Consumer Electronics Association, "broadcasters and programmers will have little incentive to produce compelling digital programming."

CEA also agrees with broadcasters and some media companies, including Disney, that cable operators must not be allowed to pick and choose which advanced and interactive services are passed along to consumers: "These options and services are the very future of television," Petricone said.