Must-carry Won’t-Happen: Newbie FCC Member Says “No” to Martin

by on June 20, 2006 · 12 comments

FCC Chairman Martin’s push to impose “multicast” must-carry rules on cable providers looked like a done deal only a few days ago. Martin had made the the new mandate a priority, and with two new Republican members of the commission sworn in, its looked like Martin would certainly be able to get a majority to support him. He had even scheduled a vote for Wednesday, usually a sure sign that the votes were in the bag.

As it turned out, however, the bag was empty. The reason: Robert McDowell, who joined the commission only three weeks ago, said “no.” According to National Journal, sources said that McDowell “sees much benefit from the cable industry voluntarily agreeing to carry broadcasters’ multicasts and prefers a private sector solution.” Moreover, he was said to be unsure of the legality of the proposed regulation. Since the two Democrats apparently also opposed the move, that left Martin without a majority.

Hooray for the new guy. Forcing cable companies to carry multiple TV signals from each broadcaster over their systems is a bad idea. First, consumers would be worse off, since these channels would displace other channels consumers presumably prefer. (Note that cable firms actually pay broadcasters for the right to carry channels that are popular. By definition, we are talking about the unpopular ones here).

Moreover, the rules would violate the constitution. By actual count, multi-cast must-carry likely violates two amendments–the fifth amendment (taking of property) and the first (free speech). Do the math. That’s 20 percent of the bill of rights. Pretty good for one regulation. They might as well add in something about quartering troops and go for a trifecta.

Commissioner McDowell, you were right to block this. Welcome to the FCC, by the way. Glad to have you aboard.

  • Randy Picker

    Do you think that the multi-cast must-carry rules pose different First Amendment issues than the prior must-carry rules blessed by the Supreme Court in Turner II?

  • James Gattuso

    Yes, I believe so — there’s a difference between must-carry for one channel, which the Court said was justifiable to protect diversity of programming, and must-carry for multiple new channels of programming from the same broadcasters. In any case, given the changes in the television industry since the Turner cases, the rationale for any must-carry rules could be revisited.

  • Randy Picker

    Do you think that the multi-cast must-carry rules pose different First Amendment issues than the prior must-carry rules blessed by the Supreme Court in Turner II?

  • James Gattuso

    Yes, I believe so — there’s a difference between must-carry for one channel, which the Court said was justifiable to protect diversity of programming, and must-carry for multiple new channels of programming from the same broadcasters. In any case, given the changes in the television industry since the Turner cases, the rationale for any must-carry rules could be revisited.

  • Braden

    Would this include must carry of public broadcasting channels too or this a separate issue? I’m trying to figure out why Copps and Adelstein are not onboard here.

  • bradencox

    Would this include must carry of public broadcasting channels too or this a separate issue? I’m trying to figure out why Copps and Adelstein are not onboard here.

  • James Gattuso

    Braden — my understanding is that they are pushing for public interest requirements to be placed on broadcasters in return for must-carry. (After all, two mandates are better than one…)

  • James Gattuso

    Braden — my understanding is that they are pushing for public interest requirements to be placed on broadcasters in return for must-carry. (After all, two mandates are better than one…)

  • Roy E. Huwa

    As a former Chief Engineer of a TV station recently taken over by an owner corporation that fought to remove its stations from cable until the cable carriers agreed to pay a fee for retransmittal rights, and the ugly battle that ensued (my reason for leaving the industry), I have no doubts in my mind that giving the broadcasters an inch in gaining a leverage over the cable carriers in in the dis-interest of the viewers. They have the licensed use of the airways, leave the transmission rights of the cable companies alone and unobstructed by greater and more restrictive regulations against free market enterprise. People pay for what they want, don’t force cable companies to deliver what the payee does not want.

  • Roy E. Huwa

    As a former Chief Engineer of a TV station recently taken over by an owner corporation that fought to remove its stations from cable until the cable carriers agreed to pay a fee for retransmittal rights, and the ugly battle that ensued (my reason for leaving the industry), I have no doubts in my mind that giving the broadcasters an inch in gaining a leverage over the cable carriers in in the dis-interest of the viewers. They have the licensed use of the airways, leave the transmission rights of the cable companies alone and unobstructed by greater and more restrictive regulations against free market enterprise. People pay for what they want, don’t force cable companies to deliver what the payee does not want.

  • Robert Hay

    Some people have no concept of “what the people want”. I for one want my cable company to provide local digital channels in the clear. About 80% of what I watch is on a local channel, but I still want the variety offered by cable networks. It’s unfair to me the consumer to pay for cable and still be forced to maintain over the air antenna reception to get the local digital and HD broadcasts. None of this has anything to do with cable companies not having enough bandwidth to carry all local stations (analog and digital). They have tons of space filled with garbage that very few people want. What is this about? It’s about maximizing the cable company profits. They need all that space so they can soak the public for more and more premium packages.

  • Robert Hay

    Some people have no concept of “what the people want”. I for one want my cable company to provide local digital channels in the clear. About 80% of what I watch is on a local channel, but I still want the variety offered by cable networks. It’s unfair to me the consumer to pay for cable and still be forced to maintain over the air antenna reception to get the local digital and HD broadcasts. None of this has anything to do with cable companies not having enough bandwidth to carry all local stations (analog and digital). They have tons of space filled with garbage that very few people want. What is this about? It’s about maximizing the cable company profits. They need all that space so they can soak the public for more and more premium packages.

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