January 19, 2001

**Dissenting Statement of Commissioner Gloria Tristani**

In the Matter of the Carriage of Digital Television Broadcast Signals
and Related Matters

CSB Docket Nos. 98-120; 00-96; 00-2.

The transition from analog television to digital television poses
fundamental policy questions. Two issues are not open to question.
First, Congress has determined the public interest obligations of
broadcasters prevailing in the analog era will carry over to the digital
era.[^1] Second, this Commission must continue to ensure cable
communications systems "are responsive to the needs and interest of the
local community" and "are encouraged to provide the widest possible
diversity of information sources and services to the public."[^2] Yet
the majority today disposes of the question of the meaning of "primary
video" in the must-carry context without reference to these explicit
statutory purposes. In fact, there is no mention of the public interest
in this section of the Order at all. By prematurely deciding that
Congress intended to foreclose even public non-commercial stations from
using their digital spectrum to broadcast several channels of
programming with mandatory carriage on local cable systems, the
Commission harms every American.[^3]

While I do not question the majority's authority to settle on some
definition of the term "primary video," doing so without substantial
discussion of other applicable sections of the Communications Act or
related case-law determinations is untenable. As the Supreme Court noted
in [Turner Broadcasting System Inc., v. FCC]{.underline}, 520 U.S. 180,
189 (1994), must-carry provisions serve \"three interrelated interests:
(1) preserving the benefits of free, over-the-air local broadcast
television, (2) promoting the widespread dissemination of information
from a multiplicity of sources, and (3) promoting fair competition in
the market for television programming.\" As a result, our deliberation
should have explicitly considered these key concerns.

Moreover, the Communications Act subjects that portion of the broadcast
signal that is not "primary video" but nonetheless is "program related"
to the same must-carry requirements. Despite this requirement the
majority determined to put off a decision on the meaning of the term
"program related."[^4] Leaving aside the wisdom of defining only one of
two key terms, I fear today's attempt to state a bright-line definition
of "primary video" while leaving the related definition of "program
related" video open, will work more mischief than it avoids. As a
result, this Commission may soon face a torrent of content-related
disputes that we are ill-equipped to resolve.

One final point bears mentioning. Despite the length of time this docket
has been open, I believe we would have benefited from a more
deliberative approach than rushing the Order out the door at the end of
this administration. The affected parties and the staff did their best
to present and consider the merits of these issues, but the press of
business rendered the effort insufficient. I hope in any future
proceedings that reflective deliberation rather than student-like
cramming characterizes our processes. For the foregoing reasons, I
respectfully dissent.

[^1]: 47 U.S.C. §336(d)("Nothing in this section shall be construed as
    relieving a television broadcast station from its obligation to
    serve the public interest, convenience, and necessity.")

[^2]: 47 U.S.C. §521(2) and (4)

[^3]: Order at pgs. 24-28 (construing 47 U.S.C. §614(b)(3)(requiring
    cable operators to carry the "primary video" signal of a broadcast
    station.)

[^4]: Order at pg. 28