Martin Plan: Cable Must-Carry For Class A TV

Washington – Opening a new front in his battle with cable operators, Federal Communications Commission chairman Kevin Martin wants to force the industry to begin carrying hundreds of low-power local TV stations that up to now have not had such access, except in the most rural parts of the country.

According to two FCC sources, Martin, a Republican, circulated his proposal Tuesday to the other four FCC members. Under Martin’s plan, the process would begin with adoption of a notice of proposed rulemaking at the FCC’s public meeting Feb. 26.

If Martin is planning to exit with the Bush administration next January, he is probably looking for quick action by the agency. An FCC spokeswoman did not have an immediate comment.

For decades, the cable industry has fought attempts by the federal government to force carriage of local TV stations. The last attempt to fight carriage mandates ended in a 5-4 Supreme Court victory for TV stations in 1997.

Adoption of the Martin-backed plan could be a windfall for the owners of Class A TV stations as the regulations would provide those broadcast outlets with instant access to about 60% of TV homes in a typical market.

“I would think so, because they haven’t had any way of getting access to cable viewers,” said broadcast attorney Howard M. Weiss, who represents Class A station owners.

It could also mean more competition among local TV stations. It's possible that TV stations that already have must-carry rights might not want to see their numbers expand.

Class A owners could be in the catbird seat financially for another reason: The FCC has not granted any new Class A licenses since the late 1990s, putting a premium on the existing inventory.

According to the FCC, there are 567 Class A stations, which are required to air three-hours of local programming per week and remain on the air 18 hours per day.

Unlike full-power TV stations, Class A stations do not have comprehensive mandatory cable carriage rights today. Federal law and FCC rules limit Class A must carry to the most rural parts of the country, where there might not even be a cable company. 

Weiss guessed that maybe 10% of Class A stations today qualify for mandatory cable carriage.

National Cable & Telecommunications Association vice president of communications Brian Dietz said Martin’s proposal would violate cable’s constitutional rights and disrupt the public-private effort to transition TV stations to an all-digital format on Feb. 17, 2009.

“It would be especially unfortunate to inject needless uncertainty and litigation, which would only serve to undermine the goal of a smooth digital transition,” Dietz said.

Determining the burden imposed by existing must carry mandates is difficult to judge because the National Association of Broadcasters, the FCC, and the NCTA do not track the number of stations that demand cable carriage and the number that negotiate for it.

Martin’s plan wouldn’t be his first attempt to load more broadcast carriage obligations on cable operators. Martin has carried out a regulatory offensive against cable because the industry has refused to break up its programming tiers and sell channels on an a la carte basis.

Last September, the FCC voted to require cable operators to carry full-power TV stations that demand carriage in both analog and digital formats for three years, a dual carriage mandate that triggered the filing of a law suit Monday by C-SPAN and five other cable programmers.

Martin has been trying for years to impose so-called multicast must carry on cable operators, which involves the forced distribution of multiple digital programming services provided by a local TV station. A digital TV station has the technology to transmit three or four different programming services using the same amount of channel space used by a single analog channel.

Class A stations are not required by law to transition to digital with full-power stations on Feb. 17, 2009. Martin is proposing a 2012 analog cut off for Class A stations, a FCC source said.