The Road Not Yet Traveled: Why the FCC Should Issue Digital Must-Carry Rules for Public Television "First"

I. THE DIGITAL TRANSITION: BUILD-OUT OF THE INFRASTRUCTURE II. THE DIGITAL TRANSITION: PUBLIC TELEVISION'S ROLE III. THE FCC RULING ON CABLE CARRIAGE AND ITS IMPACT ON PUBLIC TELEVISION IV. DIGITAL CARRIAGE FOR PUBLIC TELEVISION "FIRST". A. Plain Language Statutory Differences B. The Historical and Economic Context: There Is a Market Failure for Noncommercial Educational Services that Derives from Public Television's Reliance on Mandatory Carriage as the Sole Counterweight to Cable's Compulsory Copyright License C. The Universal Service Mandate of the Public Broadcasting Act D. Public Television Has Uniquely Received Federal, State, and Local Support E. A Public-Television-First Approach Would Be Constitutionally Defensible 1. The Governmental Interests in the Preservation of Public Television Are Greater Than Those Associated with the Preservation of Commercial Television, As Is the Need for Carriage 2. Carriage Rules Favoring Public Television Would not Be Impermissibly Content-Based V. CONCLUSION After having recently adopted a variety of complex and controversial decisions concerning the digital television transition, the Federal Communications Commission ("FCC") may be poised this year to address the issue of mandatory cable carriage of digital broadcast television signals. (1) This issue has been a matter of hot contention in Washington for three years since the FCC issued its last decision on this topic in 2001. The final resolution of the issue was repeatedly delayed, apparently due to a deadlock among the FCC Commissioners. As the FCC considers the issues, it should recognize that it may decide the critical issue of cable carriage in a careful and incremental manner. In this regard, it may reasonably consider the possibility of crafting digital carriage rules for public television stations first without ruling positively or negatively on carriage of commercial stations. This action may legitimately be based on the unique legislative and factual differences between the noncommercial and commercial service and would be constitutionally permissible. In fact, a stronger constitutional case can be made for carriage of public television stations than for commercial stations. Nor would such a distinction constitute content-based discrimination, for the FCC has made, and may continue to make, valid distinctions based on the differences in the purpose, support, and operation of the various classes of licensees under its jurisdiction. Moreover, such an approach has the additional advantage of accommodating public television stations without harming commercial interests. In this regard, the FCC need not decide either for or against commercial carriage until it has, perhaps, conducted a study of the market conditions and need for commercial carriage: an approach that would guarantee the regulatory support public television stations need while realistically respecting the political sensitivities of commercial broadcasters. This Article sets forth the legal basis for a "public-television-first" approach. Part I discusses the digital television build-out. Part II describes the role of public television stations in the digital build-out. Part III explains the FCC's 2001 ruling on digital cable carriage, describes the state of the record since the order was issued, and explains the impact of the order on public television stations in particular. Lastly, Part IV argues that a "public-television-first" approach is a reasonable, content-neutral, and therefore constitutionally permissible, exercise of the FCC's authority to address the unique needs and circumstances of public television stations. I. THE DIGITAL TRANSITION: BUILD-OUT OF THE INFRASTRUCTURE Federal law requires that after December 31, 2006, all television licensees must broadcast solely in digital (2) unless the FCC extends the deadline in a particular local television market because direct digital television ("DTV") reception or indirect reception of DTV signals via cable or satellite is not widely available to at least 85 percent of households in that market. …