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 SEPARATE  STATEMENT  OF  COMMISSIONER  KEVIN  J.  MARTIN 
 DISSENTING  IN  PART  AND  APPROVING  IN  PART 


 Re:  Carriage  of  Digital  Television  Broadcast  Signals:  Amendments  to  Part  76  of  the  Commission’s  Rules,  Second  Report  and  Order  and  First  Order  on  Reconsideration,  CS 
 Docket  98-  120 
 Today,  the  Commission  concludes  that  broadcasters  should  not  get  cable  carriage  of  their  multicasted  broadcast  signals.  This  issue  has  been  pending  for  several  years  and  the  decision  was  a 
 difficult  one  for  the  Commission.  Indeed,  even  the  majority  acknowledges  that  the  statutory  language  is  ambiguous,  and  therefore  that  we  could  have  interpreted  it  to  mandate  broader  carriage.  Ultimately,  the 
 Commission  made  a  policy  judgment  that  the  benefits  of  this  programming  were  outweighed  by  the  burden  on  cable  operators.  I  disagree.  I  think  the  public  would  benefit  more  from  more  free 
 programming. 
 Congress  gave  broadcasters  valuable  spectrum  to  use  to  offer  “advanced”  television  to  American  consumers.  Thanks  to  recent  technological  developments,  broadcasters  now  can  use  this  digital  spectrum 
 to  offer  high-  definition  programming  as  well  as  several  additional  standard  definition  programming  streams  at  the  same  time.  Without  cable  carriage,  however,  many  of  these  programs  will  not  have  the 
 opportunity  to  succeed  commercially.  As  a  result,  by  denying  cable  carriage  to  all  but  one  of  the  potential  broadcast  streams,  this  Order  effectively  prevents  any  broadcaster  relying  on  “must  carry”  from  investing 
 in  multiple  programming  streams.  The  record  is  replete  with  examples  of  the  free  programming  services  broadcasters  want  to  provide  or  expand,  including  local  news,  local  weather,  local  sports,  coverage  of 
 local  elections  and  government  proceedings,  and  foreign  language  programming.  Yet,  with  carriage  rights  for  only  one  stream,  these  broadcasters  cannot  support  all  of  this  additional  programming.  The 
 burden  on  cable  of  a  requirement  to  carry  these  multicasted  channels,  however,  actually  would  be  significantly  less  than  it  was  in  the  analog  world,  due  to  compression  technology  and  dramatically 
 expanded  cable  capacity.  Moreover,  the  burden  on  cable  capacity  is  capped  by  statute—  a  cap  that  has  been  upheld  by  the  Supreme  Court. 


 Finally,  it  should  be  kept  in  mind  that  this  decision  will  have  the  most  adverse  impact  on  small,  independent,  religious,  family-  friendly  and  minority  broadcasters.  Network  stations  and  most  large-market 
 broadcast  affiliates  are  likely  to  get  their  signals  carried  through  retransmission  consent;  must-carry  was  never  about  the  large  broadcasters.  Must  carry  was  designed  for  these  smaller  broadcasters  that 
 in  the  past  have  been  unable  to  negotiate  with  larger  cable  operators.  These  broadcasters  play  an  important  part  in  their  communities,  and  we  should  not  be  hindering  them  from  investing  in  new,  free 
 programming  for  their  viewers. 
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