WASHINGTON -- The National Association of Broadcasters doesn't lose many battles in Washington. But on Thursday, the Federal Communications Commission dealt the powerful group a painful blow when it refused to require cable operators to carry broadcasters' multiple digital streams.
Using such "multicast" streams, broadcast stations could split their channel slots into several channels -- potentially creating a mini-cable system within a cable system. Content could include anything from enhanced or specialized local programming to time-shifted TV shows to a flurry of annoying infomercials.
Although the NAB has argued that mandated multicasting is vital to the health of free over-the-air TV programming and could even accelerate the digital TV transition, FCC Chairman Michael Powell said the FCC simply lacks the authority to mandate multicasting on cable systems.
All of this could have implications for the rollout of advanced wireless services.
In addition to the spectrum broadcasters use for digital transmissions, they are sitting on huge swaths of beachfront spectrum used for the analog broadcasts received by the vast majority of Americans who still use analog TV sets. Many cable systems still retransmit those analog signals to viewers as well.
TV stations don't have to give back the analog spectrum until most people can receive the new digital signals, at which time the FCC plans to auction off the old spectrum for use for advanced wireless services. One way to increase digital TV penetration is by requiring carriage on cable systems.
Of course, the NAB itself has resisted past efforts to speed the digital TV transition. After all, it was the primary force behind an amendment that last year gutted Sen. John McCain's (R-Arizona) bill to set a "hard" deadline for broadcasters to give back their analog spectrum by 2009.
While Thursday's multicast item passed by a unanimous vote, some FCC commissioners slammed the agency for voting on the item before it had clarified broadcasters' public-interest obligations in the digital age. Several proceedings surrounding that question have lingered at the commission for years.
FCC Commissioner Michael Copps called the delays "embarrassing," and FCC Commissioner Jonathan Adelstein labeled as "outrageous" the FCC's failure to consider for public comment several proposals floated by public-interest groups.
But Powell mocked suggestions that the FCC create "carefully crafted" rules tying a multicasting requirement to broadcast public-interest obligations. Courts might see such a move as a content-based restriction and strike it down on constitutional grounds, Powell said. Thursday's order, however, does require the FCC to move separately on public-interest rules by year-end.
Even as they nursed their wounds, broadcasters weren't admitting defeat on Thursday.
"We're going to live to fight another day," said Valerie Schulte, the NAB's deputy general counsel, who spoke with reporters after the vote. "There's Congress. There's the courts. There are no final victories here."
Congress plans this year to start overhauling the Telecommunications Act of 1996, which may give the NAB an opening to fight for provisions requiring multicasting on cable systems.
On Thursday, commissioners urged broadcasters and cable operators to negotiate voluntary multicasting agreements. (Less than a week ago, the National Cable & Telecommunications Association inked a voluntary multicasting deal with the Association of Public Television Stations.)
But past talks between cable operators and commercial broadcasters have sputtered.
NCTA President Robert Sachs told reporters outside the meeting room on Thursday that cable operators "want to carry compelling digital content -- especially local content available from broadcasters." Although he said cable operators wouldn't necessarily accept all the strings that broadcasters tried to attach to such multicasting deals, "I think they'll find a cooperative partner."
