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 SEPARATE  STATEMENT  OF  CHAIRMAN  MICHAEL  K.  POWELL 
 Re:  Carriage  of  Digital  Television  Broadcast  Signals:  Amendments  to  Part  76  of  the  Commission’s  Rules 


 Today  we  hold  that  Congress  did  not  give  broadcasters  the  statutory  right  to  free  carriage  of  all  their  channels  on  a  cable  provider’s  system.  This  is  the  second  time  we  have  held  the  statute  does  not 
 authorize  “multi-  casting.”  New  digital  technology  allows  broadcasters  to  take  what  once  was  one  channel,  and  divide  it  into  four  to  six  or  even  more  channels  in  the  future  as  compression  technology 
 advances.  While  that  affords  them  expanded  business  opportunities,  we  hold  nonetheless  the  statute  limits  cable  carriage  rights  to  one.  They,  of  course,  remain  at  liberty  to  commercially  negotiate  for 
 carriage  of  other  channels,  just  as  public  broadcasters  have  recently  done  and  as  other  cable  programmers  must  do. 


 The  must-  carry  statute  limits  the  video  signal  that  must  be  carried  to  the  “primary  video.”  While,  admittedly,  lawyerly  wordsmiths  can  argue  what  “primary”  means,  it  clearly  evidences  intent  to  restrict, 
 or  limit  the  video  that  must  be  carried.  If  some  video  is  primary,  it  necessarily  follows  that  some  is  secondary.  The  view  urged  by  broadcasters  that  primary  video  includes  all  their  video  streams  without 
 limitation  proves  too  much  and,  to  my  mind,  effectively  strikes  the  restriction  from  the  books. 
 When  interpreting  a  statute  that  is  susceptible  to  different  interpretations,  the  commission  is  admonished  to  read  it  in  a  manner  that  best  avoids  raising  serious  constitutional  issues.  Must-  carry 


 unquestionably  imposes  a  first  amendment  burden  on  cable  providers.  Indeed,  the  Supreme  Court  upheld  the  must-  carry  statute  only  by  a  slim  5-  4  margin.  I  believe  reading  the  statute  now  as  expansively  as 
 broadcasters  urge  would  likely  wither  before  a  First  Amendment  challenge.  At  a  minimum,  a  serious  constitutional  question  would  be  raised.  In  such  circumstances,  the  law  directs  the  agency  to  endorse  the 
 reasonable  interpretation  that  avoids  such  a  question,  if  possible.  Reading  the  statute  to  authorize  one  video  stream  gives  effect  to  the  primary  restriction  and  best  avoids  constitutional  infirmity. 


 Moreover,  in  contrast  to  how  the  statute  is  applied  in  the  analog  context,  Congress  has  made  no  factual  findings  about  the  need  for  multi-  cast  must-  carry  in  a  digital  context.  In  fact,  it  has  not  spoken 
 directly  to  the  point  at  all.  The  Commission  would  be  on  weak  ground  if  it  interpreted  Congress’  will  to  authorize  multi-  cast  must  carry  without  a  better  legislative  foundation.  Consequently,  it  would  be  wholly 
 improper  for  this  agency  to  expand  the  must-  carry  regime—  concurrently  expanding  the  First  Amendment  imposition—  without  a  clearer  directive  from  Congress. 


 Finally,  the  record  simply  does  not  demonstrate  with  any  strength  that  vital  or  important  government  interests  are  advanced,  sufficient  to  justify  further  encroachment  on  the  first  amendment 
 rights  of  cable  providers.  Broadcasters  provide  a  valuable  service  to  the  American  people,  and  their  voice  remains  one  government  should  work  to  preserve,  but  it  simply  is  not  the  case,  in  our  judgment,  that  an 
 expansion  of  carriage  rights  is  necessary  for  their  survival,  or  to  preserve  diversity  and  localism.  Recognizing  the  expense  of  making  the  digital  transition,  the  government  has  taken  steps  to  subsidize  it 
 by  providing  billions  of  dollars  of  spectrum  for  free,  and  through  other  government  actions,  such  as  mandatory  digital  tuners  in  televisions  and  broadcast  flag  protection.  I  do  not  believe  a  constitutionally 
 suspect  reading  of  the  must-  carry  statute  needs  to  be  added  to  the  list. 
 Over  the  course  of  the  last  four  years,  the  Commission  has  taken  nearly  every  step  within  our  authority  to  bring  the  public  the  wonders  of  digital  television  and  put  our  country  in  a  position  to  reclaim 


 needed  spectrum  for  future  public  safety  and  broadband  use.  Today,  we  finally  strike  off  our  list  another  open  question  about  the  terms  of  that  transition. 
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