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Dual Carriage Neither Required Nor Banned

In ruling Monday that cable operators were not required to carry both analog-
and digital-TV signals now, the Federal Communications Commission enunciated
important findings that could establish the legal basis for dual carriage within
a short time.

Since 1998, when the FCC opened the dual-carriage proceeding, the National
Cable Television Association has asserted that the commission has no legal
authority to require dual must-carry. The NCTA also claimed that no digital-TV
station was entitled to must-carry until broadcasters generally had returned
their analog spectrum

In a 91-page order released Tuesday, the FCC disagreed, concluding that the
law neither forbids nor compels dual must-carry.

'It is our view, having deliberated extensively on this question, that
neither of these views prevail,' the agency explained in a further notice
attached to the order.

That holding was also bad news for broadcasters, which had claimed that the
FCC had no choice but to require dual carriage.

'We strongly believe there is a congressional mandate for cable carriage of
analog- and digital broadcast-signals,' National Association of Broadcasters
president Edward Fritts said in a statement, claiming that the battle at the FCC
with cable 'is far from over.'

The FCC also said digital-only TV stations could assert must-carry rights
before the conclusion of the transition in 2006. In an action last week, the
commission said digital-only TV stations could demand cable carriage in analog
or digital immediately.

The FCC declined to impose dual must-carry based on First Amendment concerns
raised by cable programmers that fear being dropped from channel-locked cable
systems. Nor did the agency address Fifth Amendment taking claims raised by
cable operators.

To the extent that the FCC would impose dual carriage, the agency said its
regulations need to conform with the factors contained in the Supreme Court's
approval of analog must-carry in 1997, which, in essence, said the benefits of
mandatory carriage must outweigh the speech burdens on cable.

The FCC said its decision to examine whether broadcasters are gaining dual
carriage through retransmission consent and whether cable-channel additions can
readily accommodate dual must-carry could serve as the empirical predicate for
rejecting or imposing dual must-carry.

'We believe that more evidence is necessary because the Supreme Court
sustained . analog-broadcast signal-carriage requirements against a First
Amendment challenge principally because Congress and the broadcasting industry
built a substantial record of the harm to television stations in the absence of
mandatory analog-carriage rules,' the FCC said.

In a statement Tuesday, NCTA president Robert Sachs said he was hopeful that
the FCC's fact-finding effort -- which includes channel-capacity data from 16
unnamed cable MSOs -- would result in a decision that dual carriage is

'As the commission seeks additional information to complete the record, we
are confident that it will confirm the commission's initial conclusions. In the
meantime, the cable industry will continue to work with broadcasters and others
to find market-driven, not government-dictated, mechanisms to advance digital
TV,' he added.