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FCC Chairman Martin Circulating Dual-Carriage Order

A Federal Communications Commission source familiar with the item confirmed that chairman Kevin Martin circulated an order that would require cable systems that have not gone all-digital by the February 2009 date for the switch to digital broadcasting to carry must-carry TV stations in both digital and analog.

Ted Hearn of sister publication Multichannel News reported Wednesday that the order was circulated Tuesday.

There was no word on whether the item would be voted on at the commission's September meeting, but Martin would need to line up three votes for the item before scheduling it.

The vote of commissioner Robert McDowell could be key, and Martin was unable to muster that third vote for a June 2006 carriage-related order that would have required cable operators to carry the digital, multicast signals of TV stations that elected must-carry.

Stations that want cable carriage can either try to negotiate payment or forego payment for automatic, government-mandated carriage of their primary signal.

In May, the FCC sought comment on the proposal to require cable to carry TV-station signals in both analog and digital formats after the transition and whether that step was necessary to meet the 1992 Cable Act's requirement that cable must deliver a "viewable" signal of any station opting for mandatory carriage (must-carry). Martin has said that he thinks it is necessary, saying that cable should not be allowed to "just cut off signals" to as many as 32 million customers.

The cable industry has long opposed government-mandated carriage of local TV stations, saying that it is an intrusion into their editorial independence, a taking of their property and a drain on spectrum better used to provide advanced services to customers. But the National Cable & Telecommunications Association has also said that it has no intention of leaving any viewers in the dark.

Back in April, the NCTA said it has always planned to deliver broadcast signals "to all customers" after the transition. But its point was that there was no call for a government mandate.

"Cable operators already carry hundreds of local broadcast high-definition signals as a result of marketplace agreements and not government mandates," said spokesman Brian Dietz in April in response to reports that Martin was planning to seek comment on the proposal. "The FCC’s current proposal appears to mandate an unnecessary and unconstitutional carriage requirement that has already been overwhelmingly rejected twice by the FCC."

Commissioner Jonathan Adelstein, although he did not vote to block the proposed rulemaking when it was put out for public comment back in May, pointed out at the time that the commission had earlier rejected a dual-carriage proposal and should "fully consider the consequences" before trying again.

He also suggested that there was some disconnect with the FCC forcing either dual carriage or expensive set-top converters (to covert a digital signal to analog) while at the same time not allowing cable to provide lower-cost set tops.

McDowell said that while the commission needs to ensure that cable subscribers get access to higher-quality DTV signals, he would have preferred that the commission refrain from offering any specific proposals.

McDowell also said he had questions about mandating carriage in both analog and digital.

Not surprisingly, the National Association of Broadcasters is all for the proposal. "NAB appreciates Chairman Martin's timely proposal," says director of media relations, Kristopher Jones, "which would prevent analog cable subscribers from losing access to some of the most diverse programming on TV, such as religious and Spanish-language programming. Cable gatekeepers ought not be permitted to discriminate against niche and minority television stations that play an important role in the fabric of American society."