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No Dual Must-Carry for Now

Handing cable a huge regulatory victory, the Federal Communications
Commission said Monday that it would not require cable operators to carry both
analog- and digital-TV signals, but it promised to revisit the issue after
collecting channel-capacity data from cable operators in the process of
upgrading systems.

In a 4-1 splintered decision adopted Jan. 18, the FCC also refused to require
cable operators to carry more than digital-TV stations' 'primary video signals'
and other program-related content -- a move that ruled out cable carriage of
multiplexed digital-TV signals. The TV stations decide which multiplexed signals
are primary, the agency said.

At the same time, the FCC launched a new rulemaking to flesh out the meaning
of 'program-related content' and to decide whether its tentative conclusion that
dual must-carry violates the First Amendment would remain valid as channel
capacity on cable systems grew. The commission said it would conduct a survey of
cable-operator channel capacity.

Three FCC members voted to reject dual must carry -- Democratic FCC chairman
William Kennard (who resigned Jan. 19) and Republican commissioners Michael
Powell (who was named chairman by President Bush Monday) and Harold

In a prepared statement, Powell said the denial of dual carriage was
consistent with the law and recommended that broadcasters lobby Congress for
dual carriage 'given that the statute clearly did not contemplate must-carry in
a digital world.'

Ness, also in a prepared statement, said she disagreed with the ban on dual
carriage now, claiming that reaching such a conclusion before the facts on cable
channel capacity and the scope of retransmission-consent agreements were known
was a 'gratuitous' step.

'The majority should not form an opinion, even a tentative one, without first
considering such fundamental data,' Ness said, insisting that she had not made
up her mind on dual carriage due to concerns raised by cable programmers that
fear being dropped.

Stressing the importance of the broadcasters' transition to digital, Ness
suggested that if digital-TV stations don't get cable carriage, they might find
a 'place in the history books along with the passenger pigeon.'

Democrat Gloria Tristani voted against the order, finding fault with the
narrow definition of 'primary video' and with the decision to further examine
the definition of 'program-related.'

Tristani also expressed displeasure that the FCC rushed to finish the order
in the waning moments of Kennard's tenure. 'I hope that in any future
proceedings, reflective deliberation, rather than student-like cramming,
characterizes our processes,' she said.

In a lengthy press release, the FCC said digital-only TV stations --
commercial and noncommercial -- have immediate cable must-carry rights.

Last week, ruling in a separate case, the commission said digital-only TV
stations could elect to be carried in analog or digital on area cable systems.
The agency said a TV station that had returned its analog spectrum and commenced
digital-TV broadcasting was entitled to cable carriage.

In its ruling, the FCC decided a host of issues that have been swirling
around cable carriage of digital-TV signals for more than two years:

\u0007 It said cable operators would not be forced to require subscribers to
obtain set-top boxes to view digital-TV signals. However, the agency added,
digital-TV signals must be carried on the basic tier, and it will study whether
to permit voluntary agreements of digital-TV-signal carriage on a tier other
than the basic tier.

\u0007 Regarding program-related digital programming, the agency said cable
operators would have to carry closed captioning, V-chip data, Nielsen Media
Research ratings data and channel mapping and tuning protocols, also called

\u0007 Cable operators will not be required to carry Internet and
electronic-commerce data services unrelated to the primary video signal being
carried. Carriage of digital electronic program guides, the FCC said, is subject
to a 'fact-based program-related analysis.'

\u0007 The commission said cable operators may convert digital-TV signals from
8-VSB (vestigial sideband) to 64 or 256 QAM (quadrature amplitude modulation),
and they are not required to pass through 8 VSB signals.