June 21, 2000

**[BY HAND]{.underline}**

Magalie Roman Salas, Esquire

Secretary

Federal Communications Commission

The Portals

445 12^th^ Street, SW, Room TWB204

Washington, D.C. 20554

Attention: Ms. Deborah A. Lathen

Chief, Cable Services Bureau

Dear Ms. Salas:

Guenter Marksteiner, permittee of Station WHDT-DT("WHDT"), Channel 59,
Stuart, Florida, by his attorneys, hereby seeks a declaratory ruling
regarding cable TV mandatory carriage. Specifically, Marksteiner
requests a ruling that a new DTV-only television station which seeks
carriage of only a single channel of video programming (without
ancillary or supplementary services) is entitled to mandatory carriage
of such programming, subject to other applicable existing requirements
of the Communications Act and Part 76 of the Commission's rules. This is
a unique and narrow request, not involving issues of carriage of
multiple digital channels, or carriage of both the analog and digital
signal of the same station. In essence, a ruling is sought that for
mandatory carriage purposes, the transmission of a single channel of
television programming, equivalent in bandwidth and function to the
transmission of an analog TV station and converted to analog format at
the cable TV headend, is the transmission of a "full power television
broadcast station", and thus eligible for mandatory carriage.

As a DTV-only station in a time when DTV receivers are still rare, rapid
clarification of the Station's rights to mandatory carriage is necessary
if this vanguard station is to survive, and the Commission's mandate of
encouraging DTV transmissions is to be followed. Since the Station is
quickly approaching the window for declaring its election of carriage
status, if the Bureau is going to determine that, as a matter of law, at
least a single video channel of DTV-only stations such as this are
entitled to carriage, then it would benefit all parties (the Station,
the Bureau and cable TV operators) to resolve the matter now, rather
than in a drawn-out must-carry complaint proceeding, which would be
complicated by other factual and legal issues arising from the specifics
of that station and cable system.

**I. [Background]{.underline}**

The Commission granted Marksteiner's initial construction permit for DTV
station WHDT on April 25, 2000. This permit is not associated with any
analog television station.[^1] Construction on the Station has
commenced, and Marksteiner hopes to begin broadcasting in the next few
months. The programming will uniquely serve the public interest with
locally produced news and informational programming; international news,
arts and informational programming from the German network Deutsche
Welle;[^2] and American syndicated programming and movies.

In transmitting solely in DTV format, the Station is on the vanguard of
the DTV revolution that the Commission has mandated.[^3] It is believed
that currently there are no other DTV-only stations authorized by the
Commission, though some will likely be authorized in the future. While
Marksteiner is optimistic about the future of DTV, because only a very
small portion of the public have DTV television receivers now and in the
next few years, the Station is essentially dependent on cable carriage
to reach viewers, and thus to obtain the advertising necessary to
survive.

The transmission of programming to the cable TV subscriber will be
accomplished easily and inexpensively as follows: the Station will
broadcast its DTV signal in a manner that delivers a high quality signal
to cable headends. Marksteiner will provide at his own expense to each
cable operator, a standard antenna "cut" to receive channel 59, as well
as a small DTV receiver. This receiver is a slightly modified version of
an off-the-shelf set-top device, approximately the size of a standard
video tape. The device converts the Station's signal from digital to
analog. Once the signal comes out of the receiver in analog form, it is
no different in format or bandwidth than the signal the operator
receives from any analog NTSC station. [It is the functional equivalent
in every way of the signal from a traditional analog
station.]{.underline} Indeed, the signal of many analog stations go
through a similar process after their signals are delivered to cable TV
headends via microwave or fiberoptic links.

In sum, the signal ultimately received by the cable TV headend will be
identical to an analog TV signal from a new station. Yet because of the
uncertainty over resolution of broader DTV must-carry issues that do not
impact this case,[^4] Marksteiner has reason to believe that cable
operators will not carry the Station without guidance in the form of a
declaratory ruling from the Commission.

II\. **DTV-Only Stations Seeking Carriage of**

**[a Single Video Channel Are Entitled to Mandatory
Carriage]{.underline}**

In 1992, Congress adopted very broad mandatory cable TV carriage
requirements designed to ensure that viewers have access to local
over-the-air broadcast television stations.[^5] The mandatory carriage
provisions did not exclude application to DTV stations. Indeed, the only
provision referring to the then-designated "advanced television" signals
required the Commission to [ensure]{.underline} their carriage. The 1992
Cable Act was premised on the principles of preserving the existence of
local broadcasters and promoting competition in the provision of video
programming. The Supreme Court upheld the constitutionality of the
must-carry provisions of the Act, and the principles underlying
them.[^6] In the present case, as shown below, carriage of DTV-only
stations is mandated by the must-carry provisions of the Act, and
consistent with the principles underlying those provisions and the
rationale used by the Supreme Court to uphold them.

Section 614(b)(1)(B) of the Communications Act reads:

> A cable operator of a cable system with more than 12 usable activated
> channels shall carry the *signals of local commercial television
> stations*, up to one-third of the aggregate number of usable activated
> channels of such system. \[emphasis added.\]

Section 614(h)(1)(A) of the Communications Act reads, in pertinent part:

> \[T\]he term "local commercial television station" means *any* *full
> power television broadcast station*, other than a qualified
> noncommercial educational television station \..., *licensed and
> operating on a channel regularly assigned to its community by the
> Commission*\.... \[emphasis added.\]

DTV-only stations such as WHDT fully meet the requirements set out in
Section 614 of the Communications Act. WHDT is clearly a "local
commercial television station", in that it is a full power commercial
television broadcast station, licensed to and soon to be operating on a
channel (59) regularly assigned to its community (Stuart, Florida) by
the Commission.

It should be noted that the definition of "local commercial television
station" is very broad, encompassing [any]{.underline} full power
commercial station licensed by the Commission. If Congress had intended
to exclude the carriage of DTV stations, which were explicitly
anticipated by Congress at the time of the passage of the Cable Act, it
would have so indicated in Section 614. Yet it did not do so. Indeed,
the only applicable reference is in Section 614(b)(4)(B)'s requirement
that the Commission [ensure]{.underline} the cable carriage of signals
of "advanced television" stations, as DTV stations were then denoted.

In sum, not only do the broad provisions of Section 614 clearly apply on
their face to DTV-only stations, but Congress explicitly anticipated
their application to such stations. The principles underlying the
must-carry provisions also apply to DTV-only stations. In upholding the
must-carry provisions of the 1992 Cable Act, the Supreme Court noted
that the provisions advanced three interrelated important governmental
interests:

> \(1\) preserving the benefits of free, over-the-air local broadcasting
> television, (2) promoting the widespread dissemination of information
> from a multiplicity of sources, and (3) promoting fair competition in
> the market for television programming.[^7]

These principles apply as much to DTV-only stations as to analog
stations, if not more so. First, as noted above, cable carriage now is
necessary if Station WHDT is to survive to provide free over-the-air
service to viewers who will be purchasing digital receivers over the
next few years. Second, Station WHDT will be providing unique news and
informational programming to local viewers, including locally-produced
informational programming, and international programming not otherwise
available in the U.S. Third, as a new video service (and potential
competitor for advertising revenue), there is little incentive for cable
operators to commence carriage of the Station. Indeed, the Supreme Court
held that Congress could reasonably conclude that the threat of
non-carriage due to competitive threat is even greater for stations such
as WHDT, which are [independent]{.underline} and which broadcast movies.
*See Turner II*, 137 L. Ed. at 394-95.

Thus, the must-carry provisions of Section 614 of the Communications
Act, and the principles underlying them, apply to DTV-only stations.[^8]
Accordingly, DTV-only stations are entitled to mandatory carriage,
subject (like other local commercial television stations) to other
applicable existing requirements of the Communications Act and Part 76
of the Commission's rules.

**III. Mandatory Carriage of DTV-Only Stations Is Necessary**

**[to Fulfill the Mandate to Promote Free Broadcast DTV
Service.]{.underline}**

While the requirements of Section 614 of the Communications Act are a
sufficient basis for applying must-carry to DTV-only stations, further
support comes from the mandate established by the Commission to promote
free over-the-air digital broadcast service. Yet, the Commission cannot
expect broadcasters to rapidly move into digital transmission without
some certainty that an audience from cable carriage will assist them in
surviving while the universe of digital receivers grows.

The Commission stated that the primary goal in MM Docket No. 87-268
("Advanced Television Systems") was "to promote and preserve free,
universally available, local broadcast television in a digital
world."[^9] Interestingly, this goal is remarkably similar to the
principles underlying Section 614 of the Communications Act, and the
rationale used by the Supreme Court to uphold that statutory
provision.[^10] Thus, it comes as no surprise that in the DTV proceeding
the Commission recognized that "[participation by the cable industry
during the transition period is likely to be essential to the successful
introduction of digital broadcast television]{.underline} \...."[^11]
Such pronouncements in the abstract are inspiring, but now is the time
when "the rubber hits the road": if the Bureau is to follow the mandate
established by the Commission, it must act to ensure the survival of
actual DTV stations, in a time frame rapid enough to make a difference.
Rapid grant of the declaratory ruling sought herein is the opportunity
to take such an action.

**IV. [Conclusion]{.underline}**

Marksteiner recognizes that complex issues surround the enactment of
must-carry rules for stations that broadcast both an analog and a
digital signal, during the DTV transition. But such complex issues do
not exist in the request brought forth in this letter. Rather, this is a
unique and narrow request, not involving issues of carriage of multiple
digital channels, or carriage of both the analog and digital signal of
the same station.

As shown above, DTV-only stations are clearly "local commercial
televisions stations" entitled to the same mandatory carriage rights
under Section 614 of the Communications Act as analog stations. The
transmission of a single channel of downconverted DTV programming
(without ancillary or supplementary services) is the equivalent in
bandwidth and function to the transmission of an analog station, and
carriage of such a signal is no more burdensome on a cable TV operator
than carriage of an analog signal. Yet, the grant of the declaratory
ruling sought herein is necessary to promote the ability of DTV-only
stations to access their must-carry rights, and and to promote the
Commission's goal of rapid provision of free over-the-air DTV service to
the public.

Thus, Marksteiner requests that the Bureau issue a declaratory ruling
that a DTV-only station seeking carriage of only a single channel of
video programming (without ancillary or supplementary services) is
entitled to mandatory carriage of such programming, subject to other
applicable existing requirements of the Communications Act and Part 76
of the Commission's rules.

Please feel free to contact me if you have any questions, or if you need
further information.

Sincerely,

Paul J. Feldman

Counsel for Guenter Marksteiner

cc: Mr. William Johnson, FCC Room 3-C742

Mr. Ron Parver, Room 4-A822

Mr. Guenter Marksteiner

Frank R. Jazzo, Esq.

Vincent J. Curtis, Jr., Esq.

[^1]: Marksteiner originally filed an application for an analog station
    on Channel 59, Stuart, Florida. After the settlement of competing
    applications for that alloted channel was filed, Marksteiner amended
    his application to specify DTV-only operation, pursuant to the
    Commission's [Memorandum Opinion and Order on Reconsideration of the
    Fifth Report and Order]{.underline} in MM Docket 87-268, 13 FCC Rcd
    7418 (1998).

[^2]: Deutsche Welle is the largest international news network in the
    world, other than CNN. The programming presented on Channel 59 will
    be predominently in the English language.

[^3]: *See, e.g.,* *Fifth Report and Order* in MM Docket 87-268, 12 FCC
    Rcd 12809 (1997)(adopting rules for the transition from analog to
    digital television broadcasting).

[^4]: The Commission's *Notice of Proposed Rulemaking* on cable carriage
    of DTV stations was released in July of 1998, but no resulting
    *Report and Order* has been issued. The *Notice* clearly did not
    address the sole issue raised in this Letter, *i.e*., carriage of a
    single video channel of a DTV-only station.

[^5]: Cable Television Consumer Protection and Competition Act of 1992,
    P.L. 102-385, 106 Stat.1460 (1992) (the \"1992 Cable Act\").

[^6]: *Turner Broadcasting System v. FCC,* 512 U.S. 622 (1994) ("*Turner
    I"*); *Turner Broadcasting System v. FCC,* 137 L. Ed. 369 (1997)
    ("*Turner II"*).

[^7]: *Turner I*, 512 U.S. at 662. *See also*, *Turner II*, 137 L. Ed.
    at 388. The Court referenced the findings set forth in Sections 2(a)
    8-10 of the 1992 Cable Act. The Court also specifically upheld the
    reasonableness of the findings in Sections 2(a)2-5, 15, 16 and 19.
    *Turner II*, 137 L. Ed. at 388-89.

[^8]: In upholding Section 614 of the Communications Act, the Supreme
    Court used the *O'Brien* test, holding that must-carry advances
    important governmental interests, and does not impose burdens
    greater than necessary to advance those interests. *Turner II*, 137
    L. Ed. at 388-409. The advancement of important governmental
    interests by applying must-carry to DTV-only stations was discussed
    above. However, it should also be noted that the burden of applying
    must-carry to a single video channel of DTV-only stations is
    insignificant. First, for an individual cable system, it is no
    different than the burden imposed by must-carry of an analog
    station, a burden which the Court has already found to be acceptably
    small. Furthermore, on a nation-wide basis, it is believed that
    Station WHDT is currently the sole DTV-only station. In the
    transition to DTV, there will likely be only a few other DTV-only
    stations.

[^9]: *Fifth Report and Order* in MM Docket 87-268, 12 FCC Rcd at 12811.

[^10]: *See* note 7, *supra*, and the associated text.

[^11]: *Fourth Further Notice of Proposed Rulemaking/Third Notice of
    Inquiry* in MM Docket No. 87-268, 10 FCC Rcd 10541, 10542 (1995)
    (emphasis added). Indeed, without a matching analog signal, cable
    carriage is even more essential to the survival of DTV-only stations
    than to stations with both an analog and a digital signal.