U.S. satellite distributors seek relief from carriage requirements in Alaska, Hawaii

Distributors in Canada often cry that they don’t have enough capacity when the topic of regulated carriage of both analog and digital versions of TV channels comes up. In Canada, the CRTC has regulated that distributors must carry both versions of over-the-air channels in the transition period to digital, and has yet to rule on specialty TV channels. In the United States, a familiar debate is raging with direct-to-home (DTH) satellite TV distributors DirecTV and EchoStar Satellite trying to be excused from having to distribute both versions of conventional local stations in Hawaii and Alaska come June 2007. The U.S. National Association of Broadcasters (NAB), however, is opposing such a move. Below is an excerpt from its submission to the Federal Communications Commission. Section 210 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (SHVERA) requires carriage of analog and digital television broadcast signals in Alaska and Hawaii. In implementing section 210, the concluded that the required carriage includes high definition (HD) and multicast standard definition (SD) signals as broadcast by local stations in these states. DirecTV Inc. and EchoStar Satellite (collectively the petitioners) have requested reconsideration of this decision. NAB now opposes these reconsideration petitions. The commission should reject petitioners’ claims that requiring carriage of the entire free, over-the-air broadcast signal of local television stations in Alaska and Hawaii (potentially including an HD stream and/or one or more SD streams) will result in very significant capacity burdens. As set forth in detail in NAB’s opposition and its engineering statement, these claims about capacity constraints are exaggerated and factually unsupported. In particular, analysis of DirecTV’s satellite capacity currently available to serve Alaska and Hawaii shows that, contrary to DirecTV’s assertions, a diversion of capacity devoted to other programming would not be necessary for the required carriage of digital broadcast signals in Alaska and Hawaii. And while EchoStar provided virtually no information about its capacity capabilities, publicly available information indicates that EchoStar currently has the capacity to carry DTV signals in Alaska and Hawaii. Given past claims about satellite capacity constraints that proved inaccurate and the continuing ability of satellite operators to expand their available channel capacity, the commission should be skeptical of unproven assertions that the challenged carriage decision will cause serious capacity problems. Such skepticism is particularly warranted because the digital carriage provisions will not even become effective until June 8, 2007. Petitioners’ statutory and constitutional arguments are similarly lacking. The commission’s interpretation of the Alaska and Hawaii carriage provision of SHVERA gives meaning to the terms of the statute and reflects Congress’ underlying intent to ensure improved service to the citizens of these states. Because the commission’s construction of SHVERA is reasonable, it is therefore entitled to substantial deference. Moreover, petitioners have failed to show any constitutional infirmity in the commission’s carriage decision. Because the decision promotes important governmental interests and does not burden petitioners’ speech rights, their claims of a First Amendment violation are unmeritorious. And because the Alaska and Hawaii carriage requirement constitutes neither a permanent physical occupation of real property nor a regulatory taking, it is consistent with the Fifth Amendment as well. For all these reasons…the commission should not grant DirecTV’s and EchoStar’s petitions for reconsideration.

U.S. satellite distributors seek relief from carriage requirements in Alaska, Hawaii

News | 12/21/2005 5:00 am EST

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