**DA 01-1049**

April 23, 2001 **CSB-ILR 01-1**

Daniel L. Brenner

Senior Vice President for Law and Regulatory Policy

National Cable Television Association

1724 Massachusetts Avenue, N.W.

Washington, D.C. 20036

Re: Carriage of Digital Television Broadcast Signals, CS Docket No.
98-120

Dear Mr. Brenner:

You wrote to me in the context of the recently released *First Report
and Order and Further Notice of Proposed Rulemaking* in the Digital
Television Must Carry[^1] proceeding asking why the Cable Services
Bureau sent a survey to cable operators but did not survey specific
broadcasters on the subject of broadcasting digital signals.
Essentially, the answer is that we believe broadcasters that advocate
dual carriage have an incentive to provide us with information in an
effort to justify such a requirement. The Commission was clear in the
DTV Must Carry *Order and FNPRM* that the current record did not support
imposing a dual carriage requirement; thus offering a further incentive
to those who favor dual carriage to present substantial evidence on this
issue.[^2] Moreover, the questions posed to cable operators in the Cable
Services Bureau survey are more objective and suitable for tabulation
than the questions we might pose to individual broadcast stations.

As you noted in your letter, the Commission posed three specific
questions to broadcasters in the FNPRM.[^3] We believe these questions
seeking specific information on plans for digital programming and format
will help to focus commenters on the Commission's need for specificity
in the record. The FNPRM invited commenters that support a dual carriage
requirement to "provide specific empirical information to demonstrate
how mandatory dual carriage requirements would satisfy the requirements
of both *Turner* and *O'Brien*."[^4] The Commission noted in the FNPRM
that the statute is ambiguous on the question of mandatory dual carriage
and tentatively concluded, based on the record in hand, that such a
requirement appears to burden cable operators' First Amendment interests
more than necessary to further important governmental interests.[^5] The
onus is on those who favor mandatory dual carriage to provide the
necessary information to overcome this existing presumption. In
particular the Commission stated that the record is insufficient to
demonstrate the degree of harm broadcasters would suffer without
carriage of both signals.[^6] The FNPRM also notes that there appears to
be "a limited amount of original digital programming being broadcast,"
and, as a consequence, calls into question the practicality of mandating
dual carriage. These presumptions and concerns lay the groundwork for
the specific questions to broadcasters that you cited in your
letter.[^7] We believe this stated presumption and specific request for
information provides an incentive to broadcasters to respond with
specificity in their comments.

The FNPRM also asked for information from cable operators, in general,
and from small cable operators in particular.[^8] In contrast to the
questions posed to broadcasters, we believe that cable operators should
be able to provide us with very specific information about current
system capacity, plans for future capacity, and retransmission consent
agreements as they pertain to voluntary digital carriage. This type of
information is largely objective and quantifiable. Moreover, by querying
only 16 cable operators we can cover over 80% of cable households.[^9]
Therefore, we concluded that a survey instrument would be more
appropriate and efficient to obtain needed information from cable
operators than a comparable document would be in the context of
broadcast stations. Nevertheless, we appreciate your suggestion, and we
hope that broadcasters that favor a dual carriage requirement will
appreciate the importance of providing the Commission with complete
information and data for the record.

We look forward to receiving and reviewing the cable operators'
responses to the survey the Bureau sent to them in January. We are
hopeful that NCTA will encourage its members to provide their survey
responses in a complete and timely fashion.

Sincerely,

Deborah A. Lathen

Chief

Cable Services Bureau

cc: Jack Goodman, National Association of Broadcasters

[^1]: *Carriage of Digital Television Broadcast Signals, Amendments to
    Part 76 of the Commission's Rules, Implementation of the Satellite
    Home Viewer Improvement Act of 1999: Local Broadcast Signal Carriage
    Issues, Application of Network Non-Duplication, Syndicated
    Exclusivity and Sports Blackout Rules to Satellite Retransmission of
    Broadcast Signals,* ("*DTV Must Carry Order and FNPRM*"), CS Docket
    Nos. 98-120, 00-96, 00-2, FCC No. 01-22, released January 23, 2001.

[^2]: *Id.* at ¶ 112.

[^3]: *Id.* at ¶ 120.

[^4]: *Id.* at *¶* 114. On this point, we discouraged commenters from
    repeating previously submitted legal arguments, and we are hopeful
    that the comments will focus instead on the factual information we
    request.

[^5]: *Id.* at ¶ 3 and 112.

[^6]: *Id.* at ¶ 115.

[^7]: *Id.* at ¶ 120.

[^8]: *Id.* at ¶¶ 112, 121.

[^9]: As you suggest in your letter, we might have to survey 170 or more
    broadcasters to obtain useful information about widespread plans for
    digital signal broadcasting.