Aiding the Final Push of the Digital Transition

AuthorAndrew L. Shapiro
PositionB.A., Political Science, Washington University in St. Louis, Spring 2004

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    J.D. Candidate, Benjamin N. Cardozo School of Law, Spring 2007. I would like to thank Professor Daniel A. Crane for all his advice and help in composing this note. I would also like to thank the entire staff of the Cardozo Public Law, Policy, and Ethics Journal for all their work, particularly all those editors who have helped to guide this work to its final destination.

The transition of television broadcast signals from analog to digital-a development which carries multiple benefits to consumers, the telecommunications industry and the government1-has occurred at a sluggish pace. The December 31, 2006, deadline for broadcast television stations to permanently switch from analog to digital transmission and surrender their analog spectrum to the government, as mandated by Congress in the Balanced Budget Act of 1997,2 will definitely be missed.3 As a result, Congress enacted the Digital Television Transition and Public Safety Act of 2005 ("DTV Transition and Public Safety Page 340 Act") as part of the Deficit Reduction Act of 2005.4 The DTV Transition and Public Safety Act will set a new hard date for both the switch and the return of the analog spectrum5 as well as provide a plan for preparing the public for the termination of analog broadcasting on that date.6

While not referencing the provisions of the Cable Television Consumer Protection and Competition Act of 1992 ("CTCPCA")7 which established the initial "must-carry" versus "retransmission" scheme,8 the enacted DTV Transition and Public Safety Act seemingly alters the scheme to require digital "must-carry."9 That is to say, beginning on February 17, 2009, the DTV Transition and Public Safety Act requires that cable and satellite operators carry a broadcaster's digital signal in the event that the broadcaster chooses the option of "must-carry." This would alter the original "must-carry" provisions, which only provided for the statutory carriage of analog broadcast signals. Such alteration is Page 341 only logical given the cessation of all analog broadcasting. In addition, given the current minimal penetration of television sets capable of receiving digital signals,10 cable and satellite operators will presumably have to convert each broadcaster's digital signal into a separate, new analog signal in order to continue serving their customers effectively. That signal would be viewable on analog television sets and would have to be carried in addition to the digital signal for the foreseeable future, until digital penetration is sufficient to allow its termination.11 Accordingly, the enacted DTV Transition and Public Policy Act in essence enforces a de facto regime of "dual-carriage"12 in a form not previously foreseen.

Traditionally, the concept of dual-carriage formerly called for by broadcasters13 would have required cable and satellite providers to carry a broadcaster's digital signal, along with its analog signal, whenever a broadcaster chose the option of "must-carry" under the CTCPCA. Broadcasters pushed for dual-carriage under the assumption they would still transmit analog signals along with their digital ones as a result of various loopholes that activate extensions to the CTCPCA transition deadline. Conversely, the dual-carriage will exist in an environment where broadcasters are only transmitting digital signals. As such, it is novel in that it switches the basic "must-carry" provision to require the carriage of broadcasters' digital signals rather than analog signals, and Page 342 then creates the duality aspect by essentially requiring cable and satellite providers to deliver a second, separate analog signal to be created by the providers themselves through a process of down-conversion.14

In the past, broadcasters had backed the traditional concept of dual-carriage, asserting that it would advance the digital transition and increase the penetration of digital television in consumer households. Specifically, they argued that in order for the digital transition to move forward, cable subscribers must be guaranteed access to digital signal in order to foster the purchase of digital sets and to entice broadcasters to aggressively and successfully make the transition.15 The DTV Transition and Public Safety Act overtly achieves the objective of guaranteeing cable subscribers access to digital signals. However, specifically with regards to consumers, it is debatable whether there will be a smooth transition towards digitalization.

It may be said that the substantial result of the DTV Transition and Public Safety Act is to replace Congress's initial marketplace approach to the digital transition with a government-engineered model.16 This note will address whether this new model can succeed, based on substantial facilitation by the government, where the marketplace seemingly failed.17 In particular, shortcomings in the DTV Transition and Public Safety Act will be examined in order to predict whether its provisions can realistically be expected to hasten the digital transition and lead to its completion. Special attention will be given to the revisions of Page 343 the enacted act and their effect. Additionally, given the widespread legal debate over the constitutionality of Congress's initial "must-carry" scheme, this note will analyze the constitutionality of the DTV Transition and Public Safety Act's provisions.

I The Digital Transition Before the DTV Transition and Public Safety Act
A The Stalled Digital Transition

In a recent panel discussion,18 Susan Fox19 accurately conveyed the problems that have befuddled the transition to digital television when she half-jokingly stated: "I think that the only possible thing that is harder than keeping three children moderately healthy during cold and flu season is getting all aspects of the digital television transition actually moving at the same time."20

It is clear that the transition from analog to digital transmission of broadcast signals, mandated by Congress in the Balanced Budget Act of 1997,21 has been hampered by a lack of cooperation between the various industry parties involved, most notably between broadcasters on one hand and cable and satellite companies on the other.22 Simply stated, the cable and satellite industries' reluctance to include the digital signals of local broadcast stations along with the analog signals of those stations, as well as their reluctance to offer multi-casting options23 to consumers, Page 344 has slowed experimentation by broadcasters with digital television technologies and the penetration of digital television sets with consumers.24 Therefore, it is certain that Congress's deadline for the digital transition, set at December 31, 2006,25 will be missed since digital television set ownership penetration in consumer households is nowhere near the amount required for the deadline to take effect.26

In contrast, the outlook for DTV overall is far less grim. Broadcasters, by and large, have fulfilled their duty to begin broadcasting their signals digitally, which is perhaps the most difficult and certainly the most expensive step in transitioning to DTV. The next step is the rather simple delivery of this signal to consumers.27 This requires the widespread use of digital television sets with necessary digital receivers as well as the ability of consumers to receive digital signals via the methods the vast majority of Americans receive broadcast signals-through cable and satellite providers.28 However, providers have been reluctant to Page 345 carry these signals, preferring not to "waste" channel capacity on digital signals that: 1) offer the same content as analog signals that they have already been made available to customers; and 2) most customers do not have the hardware to appreciate.29 Accordingly, the consumer adoption of DTV has represented a "classic chicken and egg problem;"30 consumers do not want to purchase the necessary hardware until they can be certain that digital signals will be available to them, while providers do not feel it necessary to deliver those signals since consumer demand is relatively low, especially since so few consumers own the necessary hardware.31

By enforcing digital "must-carry" upon providers, the DTV Transition and Public Safety Act aims to speed along the digital transition by mandating a hard date for the switch. While it does not examine or address why the market failed to increase digital television set penetration in American television households to the degree Congress expected, it does correctly conclude that the market could never independently accomplish the transition Congress envisaged.32 As such, with the DTV Transition and Public Safety Act, Congress has intervened to achieve advances the market itself could not realize.

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B The Need for Transitional Dual-Carriage

Had Congress examined why the DTV transition did not occur as planned, it would have seen that much of the blame lies in the ineffective "must-carry" laws still in operation today. The...

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