**STATEMENT OF**

**COMMISSIONER MICHAEL J. COPPS,**

**CONCURRING**

*Re: Carriage of Digital Television Broadcast Signals: Amendments to
Part 76 of the Commission's Rules*

In a few moments, I will vote to concur in this item. It was not an easy
decision. I do so because the item has been significantly improved from
what it was through the intense discussions of recent days. Still, the
outcome falls far short of what might have been, the timing is
out-of-sync with other important proceedings, and the process
short-circuits the Commission's public interest responsibilities.

We are told to act now because this proceeding has been pending for so
long. That's fine---if we have done our work. But we have not done our
work. Other items integral to this one, prerequisites for today's vote,
have been around even longer. Consider that in 1999, more than a year
***before*** our first must-carry vote, we opened a proceeding on the
public interest obligations of digital TV broadcasters. And in that
public interest proceeding, remember that we were not writing on a blank
slate. Rather, we were addressing issues raised in a report from a
Presidential advisory committee that was issued a full year before that.
It is six years later now, and this Commission still has not provided
the American people with a clear idea as to how broadcasters' enhanced
digital spectrum is going to improve our viewing experience. The
must-carry decision was a golden opportunity in which to consider
this---but we let it slip away. Instead we have a record of inaction
that will go down, I believe, as the Commission's major failing in its
efforts to move the digital transition forward.

So I want to be clear that this Order is not of my making and its timing
is not of my choosing. I have been abundantly clear throughout that we
should address the public interest first. I have begged my colleagues to
do this. I have begged my broadcaster friends to engage the issue. The
digital transition holds the promise of reinventing free, over-the-air
television by not only providing consumers new and valuable services,
but offering broadcasters new and valuable business opportunities.

I am frustrated that broadcasters have been reluctant to engage in a
dialogue on the public interest. It is particularly small and
independent broadcasters who should be leading the discussion because
they have so much to gain---or lose---via the wrong must-carry outcome.
The networks and stations with real market leverage need not
worry---they know they will have carriage through the pure power of
their market negotiating muscle. I am concerned, however, about
independent broadcasters, including those that seek to provide public
affairs programming, religious programming, family-friendly programming,
Spanish-language programming, or other programming to reach underserved
parts of their communities. Independent broadcasters already face so
many challenges in this consolidated environment, and I worry that this
decision may impose very high opportunity costs on them. I am also
concerned, I should add, that this decision may lead some broadcasters
to use the public spectrum for ancillary pay services, rather than for
free over-the-air broadcasts to their communities. That's not what the
digital transition is supposed to be all about.

When we pause to consider what truly local stations could bring to the
television experience by way of covering community developments, local
news, district-level Congressional races, high school and local college
sports and how they could feature and encourage local talent and local
creativity, it becomes very clear very quickly that making good use of
this spectrum is profoundly important to the people---you and me---who
own it.

My disappointment goes beyond the broadcasters to the Commission itself,
because it has short-circuited proceedings that cried out to be
completed before we decided on the must-carry item. We are little more
than half way through the grassroots localism hearings the Commission
pledged to conduct so that we could better understand how to promote
media diversity and localism. Isn't how broadcasters make use of the
significant additional spectrum resources given to them integral to any
worthy discussion of diversity and localism? But we'll complete localism
later, I guess. Ready, fire, aim. Our snail's pace in handling public
interest items that have been pending here for more than five years is,
to me, embarrassing. Today we manage to get some assurance that the
public interest items will be called up soon and hopefully completed
before the year is out---these are items pertaining to disclosing a
station's public file on the Internet and the even more important
proceeding regarding the general responsibilities of television
broadcasters in the digital era---something on which the Presidential
advisory committee spent a lot of time and effort and also something
which a host of public-spirited groups have been advocating for years.
If we can move boldly forward on items concerning the mechanics of the
digital transition---like we did on digital tuners, plug-and-play, the
broadcast flag, signal replication and so on---then why, oh why, haven't
we been able to address what's in the digital revolution for our
consumers and citizens?

Time and again we have failed the American people and local
broadcasters. On top of the localism and public interest proceedings I
just mentioned was the majority's decision in 2003 to drastically loosen
media consolidation protections, thereby threatening the very survival
of small local broadcasters who represent what is left of localism and
diversity in the new big media environment. We also have failed to deal
in a timely fashion with the NASA petition concerning local stations'
relationship to the networks. Now we fail again.

I believe that a properly-crafted must-carry decision would be a boon to
localism, diversity and competition. Does that mean cable should have to
carry every programming idea that any broadcaster can dream up? Of
course not. I don't believe cable should have the burden to carry every
camera hanging out of a window or the home shopping programs or all
those infomercials masquerading as real programs. Our challenge is to
craft some balance here. But we never sought balance. We never had that
public dialogue about how to incent truly local and diverse programming.
Nor, indeed, did we attempt to understand the economic consequences that
would flow from any of the various decisions we could have made about
must-carry. What does it mean for broadcasting if there is no available
audience for those huge swaths of spectrum opportunity that multicast
affords? What does our decision mean in terms of who has what leverage
in future carriage negotiations? What does this mean especially for
small, independent stations who just may have the wherewithal and the
desire to provide good multicast programming but who lack negotiating
power to give it an audience? Where is the analysis here? Someone is
going to pay for whatever decision we make---and, here as in so many
other areas, it is the consumer who ends up footing the bill, monetary
and otherwise.

Even where I agree with specific outcomes, I disagree with much of the
analysis in this item. For example, I concur with the decision to deny
dual carriage during the digital transition; I agree that a dual
carriage mandate would be a burden that cable operators are not legally
required to shoulder. But I believe our denial need not reach the
Constitutional issues referenced in today's item. I also believe there
is ample latitude available to the Commission to determine changed
carriage requirements in a changed media environment through both the
broad language of the statute and also through court decisions
admonishing us to seek diversity, a multiplicity of voices and a viable
environment for free, over-the-air broadcasting. These fundamental
objectives are at the heart of our communications statutes and they have
been repeatedly referenced and upheld by courts across the land. By the
way, I also wonder why, if there is such urgent need to decide
must-carry today, the related question of what "program-related" means
does not qualify for our decision-making at this time?

I urge cable operators and broadcasters to negotiate in good faith for
cable carriage of local programming or other broadcast offerings that
serve their communities. Maybe it's the impossible dream, but the
promising agreement that issued last week from discussions between cable
and public television indicate that, dreams aside, it can be done. The
agreement between cable operators and public television to guarantee
cable subscribers access to digital public television programming
breathes hope and life into digital television like nothing else we have
seen. I commend the parties for their dedication to accomplishing this
landmark agreement, I hope all operators will participate, and I hope we
will all learn a lesson from it.

I also wish to emphasize, as the Order now does, that the decision we
make today is based on the record presently before us. It is an
incomplete record if for no other reason than important prior
proceedings, upon which this one should have depended, are left
unfinished. I look forward to a day when the Commission will once again
accept its responsibility and we can have a dialogue on localism,
diversity and the public interest in the digital age that will yield
consumer-friendly, and citizen-friendly, results, allowing us all to
reap the expansive new opportunities that digital technology can
produce.