Extending Viewability Would Aid TV Diversity

I’ve never been a fan of must carry. It’s fraught with First Amendment and Fifth Amendment difficulties, and I’ve always figured that a TV station that couldn’t persuade the local operator to carry its signal ABSOLUTELY FREE must not be broadcasting much of value.

But I am impressed by the broadcasters who have coalesced in recent days to oppose a move by FCC Chairman Julius Genachowski to water down their must-carry rights in the so-called viewability proceeding.

The broadcasters include Spanish-language station groups like Liberman, Una Vez Mas and Azteca America; religious groups like Trinity and Daystar; minority stations represented by the National Association of Black Owned Broadcasters and the National Black Church Initiative; and just plain old independent stations.

For the most part, these broadcasters are not known for their news, sports and weather, but they nonetheless provide services that are appreciated by narrow segments of the America public. In other words, they provide diversity in programming — one of the pillars of FCC policy for as long as I can remember.

If there is any justification for must carry, it’s diversity.

At issue in the viewability proceeding is a rule that requires cable operators to carry must-carry signals in both analog and digital formats. The analog signals allow subscribers to watch on old analog TV sets. (The rule doesn’t apply to systems that have converted to an all-digital operation.)

If the rule goes away, operators will be able to drop the analog signals. To continue watching on the digital tier, subscribers would have to pay for a digital set-top box.

That rule is set to expire next Tuesday unless the FCC votes to extend it. Genachowski has floated a proposal to phase out the rules in six months, but our DC reporter Kim McAvoy is hearing that he may be having trouble lining up the two additional votes he needs to have his way.

This will be an interesting test of Mignon Clyburn, the Democratic commissioner who has served as a handy rubber stamp for just about everything that Genachowski has wanted to do. She disappointed many broadcasters in April by going along with Genachowski’s order to put political advertising files online.

But Clyburn has made diversity in programming and ownership her issue. Here’s her chance to show that she is more than just talk, that she really wants to encourage programming for small, underserved audiences.

She is in good position to show a little pluck, having just been re-nominated by President Obama for another five-year term. Her Senate confirmation is virtually guaranteed. Her father, not incidentally, is Rep. Jim Clyburn of South Carolina, the third-ranking Democratic leader in the House.

The big broadcasters — network affiliates with regular newscasts — feel they also have something at stake in the proceeding, even if they are of the class that goes for retransmission consent compensation rather than must carry.

According to a filing of the Big Three affiliate groups, many retrans agreements cite the viewability rule. “If the rule were to go away, cable operators likely would insist that they have no obligation to ensure retransmission consent signals are available to all subscribers. In that case, operators could require analog customers to choose between paying more and receiving the full complement of local over-the-air signals or paying less and losing access.”

Some broadcasters also have the nagging concern — indeed, some are convinced — that Genachowski’s motivation is to weaken the must-carry stations to such a point that they will volunteer their spectrum for sale in the FCC incentive auction.

Reallocating large hunks of TV spectrum to wireless broadband via the auction is what Genachowski is all about. He believes that broadband is the future of media, commerce and education and he wants to make sure it doesn’t starve for spectrum.

I can’t say whether the broadcasters’ concerns in this instance are well founded. Genachowski doesn’t share his thinking with me.

It could be that Genachowski just wants to cut the cable operators a break. They have made a strong case for why the rule should go. Analog signals are a terribly inefficient use of spectrum, even within a cable system.

On the other hand, every regulatory move by Genachowski affecting the viability of broadcasting is suspect.

Remember Stuart Benjamin? He was the Duke law professor that Genachowski brought in as an advisor in 2009.  Among his credentials was an academic paper that suggested that the FCC ought to speed the demise of broadcasting by heaping onerous regulations on it so that its spectrum could be more quickly recovered for other purposes.

The paper also said the FCC should target rules that help broadcasters: “If a regulation would tend to entrench broadcasting’s place on the spectrum, then the regulation will not help to free up spectrum and should be avoided.”

Clearly, the viewability rule helps entrench broadcasters.

If there are any broadcasters that Genachowski should be listening to in all this, it’s  NRJ TV and OTA Broadcasting. They are Genachowski’s only allies on the roiling spectrum issue. They have been buying up marginal stations with the intention of eventually selling their spectrum through the FCC incentive auction.

Significantly, both favor extending the rule for three more years, arguing that they have to make a living in broadcasting while the FCC gets its act together on the incentive auction, a process that could take several years.

As I said, I am no fan of must carry. But it is the law, and I am persuaded that letting the viewability rule expire would unnecessarily hurt the weakest stations, diminish their value and threaten the diversity they bring to the public.

I hope Genachowski or three of the other commissioners are persuaded, too.

Let’s hear it: Three More Years! Three More Years!

Harry A. Jessell is editor of TVNewsCheck. He can be contacted at 973-701-1067 or [email protected]. You can read earlier columns here.