January 19, 2001

STATEMENT OF COMMISSIONER SUSAN NESS
APPROVING IN PART AND DISSENTING IN PART

Re:  Carriage of Digital Television Broadcast Signals, CS Docket Nos. 98-120, 00-96, 
00-2

	After a long wait, we finally are addressing some of the issues involving the 
carriage of digital broadcast signals on cable.  I would have hoped that this digital must 
carry proceeding would provide finality and clarity for industry participants who need 
sufficient lead-time to develop business plans.  Unfortunately, it does not.  While I 
support the majority of decisions in this Order, along with the Further Notice to establish 
a better record on the effect of a dual carriage requirement, I dissent to the tentative 
conclusion regarding dual carriage.  I also write separately to emphasize the importance 
of our Further Notice regarding program related material in the digital context.

Dual Carriage

	I support the Further Notice to collect additional information regarding cable 
operators system capacity, the status of digital retransmission negotiations, and the 
practical effects of a dual carriage requirement.  I dissent, however, from the Majoritys 
tentative conclusion on a matter of law, which in effect states that industry has failed to 
meet its constitutional burden. 

	First, drawing such a tentative conclusion is gratuitous.  The item concedes that 
the record is insufficient to accurately discern the impact on cable operators speech 
posed by a dual carriage requirement.  Indeed, the Commission now asks for the very 
information -- including cable system channel capacity  -- that I have been asking the 
Commission to collect for over two years.  This information is significant especially in 
light of the upgrades being executed by the major MSOs, many pursuant to Social 
Contracts with this agency.  Such system capacity information is solely at the disposal of 
cable operators.  We also request important data on the status and scope of digital 
retransmission consent agreements. To what extent are cable operators voluntarily 
carrying digital broadcasts?   The Majority should not form an opinion, even a tentative 
one, without first considering such fundamental data.  

	Second, the tentative conclusion addresses only one aspect of the intermediate 
scrutiny test.  Specifically, the intermediate scrutiny standard established under U.S. v. 
OBrien, as applied in the Turner decisions, requires that a content-neutral law affecting 
speech further a substantial or important government interest.    As the item points out, 
that interest in the must carry context boils down to (1) the preservation of free over-the-
air television; (2) the promotion of the widespread dissemination of information from 
many sources; and (3) the promotion of fair competition.   Would a dual carriage 
requirement further that substantial government interest?  The item is silent on this point.  
Such willingness to put the ball in industrys court while punting on the subject of our 
own legal burden is emblematic, I believe, of the Commissions need to develop a 
clearer, more visionary picture of its own role in the digital transition, regardless of what 
we ultimately decide on the question of dual carriage.

The government has a substantial interest in facilitating a successful digital 
transition for the American public.  As all communications media go digital, broadcasting 
must follow suit or find its place in the history books along with the Passenger Pigeon.  A 
successful digital transition thus would ensure that the public has access to free, over-the-
air broadcasting in the digital age and beyond.  A successful digital transition also would 
serve the governments interest in promoting viewpoint diversity by providing a greater 
variety of independent programming sources.

Finally, there is no need to state a tentative conclusion at this time. The item 
states that the statute neither compels dual carriage; nor prohibits it and that in order 
to weigh the constitutional questions inherent in a statutory construction that would 
permit dual carriage, we believe it is appropriate and necessary to more fully develop the 
record in this regard.     I agree.  I therefore believe that it is unnecessary, and ill-timed, 
for the government to weigh in with a premature assessment of the constitutionality of 
dual carriage before we have collected and analyzed the evidence that would address this 
question.  Moreover, such a determination might prejudice the outcome of any ongoing 
market-based carriage discussions.  I also seriously question whether a federal court 
would entertain review of such a tentative conclusion, since it is not a final agency action.  
Accordingly, I would have issued the Further Notice without drawing a tentative 
conclusion on the issue of the burden to cable operators posed by a dual carriage 
requirement.

I caution parties not to view my dissent as addressing, pro or con, the merits of a 
dual carriage requirement.  I have great sympathy for the many independent cable 
networks whose efforts to obtain carriage may be adversely affected by broadcast digital 
carriage. My preference, therefore, has been and will continue to be the fostering of 
market-based solutions.  In that vein, over the past few years, I repeatedly have urged 
broadcasters and cable operators at gatherings I attend, both public and private, to 
negotiate in good faith on carriage of digital broadcasts during this transition period.  I 
also have argued that as the carriage capacity of cable systems expands, with upgrades 
and the addition of digital capabilities, the burden of carrying broadcast programming 
diminishes accordingly.

Primary Video

	I reluctantly conclude that the best reading of the statutory term, primary video, 
refers to one programming stream.  I believe that this interpretation is the most easily 
defensible, but it is by no means the only reasonable one.  

A single-stream interpretation of primary video could have the odd result of 
requiring broadcasters and cable operators to continuously examine broadcasters content 
to determine whether the signal is primary video, program related, or something else.  For 
example, if a broadcaster in a tri-state area offers a main news program, and then breaks 
away to three video streams to cover local news in each state, would the entire news 
program be primary video, would the breakout streams be program related, or neither?  A 
cable operator would have to draw these conclusions.  In contrast, a definition of 
primary video that includes all free, non-subscription video programming streams 
would be easier to administer.

Ironically, a single stream interpretation of primary video results in cable 
operators using less, not more, spectrum for broadcast must-carry at the end of the digital 
transition than they do today.  Each analog signal requires 6 MHz of spectrum on the 
cable system.  By contrast, with digital compression, and if broadcasters offer multiple 
program streams, it is possible that the primary video will require 2 MHz or less of 
capacity, not six.  
 
Of course, retransmission consent agreements might resolve these issues.  For 
example, the cable operator might agree voluntarily to carry the entire free, over-the-air 
video programming signal.  Absent a must-carry requirement, a broadcaster might be 
more willing to enter into retransmission consent arrangements to carry a portion of the 
digital signal in addition to the full analog signal during the transition period. 

While I support the decision to limit the definition of primary video to one digital 
programming stream based on the current state of the record, I would entertain on 
reconsideration new or refined support for a statutory construction that justifies the 
carriage of multiplexed free video programming.  Although the statute mandates that the 
primary video be carried, and expressly excludes mandatory carriage of ancillary and 
supplementary services, is there discretion under the statute for the Commission to find it 
in the public interest (and not unduly burdensome) for the cable operator to carry a 
stations multiplexed free video channels?  While the statute does not preclude carriage 
of multiplexed programming streams, it is hard to find legislative support for a more 
expansive mandatory carriage requirement.

Finally, I am particularly concerned about public broadcasters.  As reflected in the 
record, and cited briefly in the item,  public broadcasters have developed innovative 
digital strategies that rely heavily on multicasting.  These include a 24-hour childrens 
programming channel; an educational channel devoted to instructional video and adult 
education; a channel focused on local legislative and public interest issues; and the 
award-winning national programming schedule distributed by PBS.   To what extent 
does our construction of the primary video term allow for such multicasting, especially 
given the apparently broader definition of program related for noncommercial, 
educational broadcasters?   

Conclusion

Given the complexity and importance of these issues, the Commission must 
proceed carefully and expeditiously.  I intend to continue working with broadcasters, 
cable operators, content producers, and consumer electronics manufacturers, along with 
my colleagues on the Commission, to facilitate a transition to digital broadcasting that 
works for the American people.
    Para. 3.
    Para. 114, citing U.S. v. OBrien, 391 U.S. 367, 377 (1968).
    Para. 113, citing Turner Broadcasting System, Inc. v. U.S., 512 U.S. 622, 662 (1997) (Turner II).  It is 
important to note that the deference the Supreme Court afforded Congress in Turner II might not extend to 
this Agency.  Therefore, we cannot be assured that, even if we assemble a voluminous record, the Turner II 
decision would sustain a dual carriage decision, especially given the relatively scant legislative history 
concerning digital broadcasting.  
    Para. 113.
    Para. 112, n. 4.
    Letter from the Association of Americas Public Television Stations, January 18, 2001.
    See Para. 112 (citing sections 614(b)(3)(A) and 615(g)(1) of the Act).