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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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November 19, 2003

FCC Inconsistency on HDTV

Posted by Ernest Miller

The Detroit News reports that the FCC is planning to deny "dual must carry" for television broadcasters (FCC won't require cable operators to carry digital TV shows). Under "dual must carry" the cable companies would be required to carry both the analog and HDTV signals from the television networks. Without "dual must carry" the broadcasters would have to decide which signal the cable company carried. If they insisted on the analog signal, the majority of Americans who receive television via cable would have no incentive to buy HDTV systems. If the broadcasters insisted on the HDTV signal, they would lose the majority of Americans who do not have HDTV receivers yet.

The broadcasters are stuck between a rock and a hard place. It was precisely the difficulty of the transition that was one of the main justifications for giving broadcasters additional bandwidth so that they could continue to broadcast analog and HDTV at the same time. Apparently, this is far too burdensome on the cable companies:

"Commissioners seem to think there'd be too much of a burden on cable without sufficient public benefit," said Blair Levin, an analyst with Legg Mason Wood Walker Inc. who was an FCC chief of staff.

Funny, the commissioners didn't seem to care about the burden on the consumer electronics or personal computer industries (not to mention the consumers themselves) when they mandated the broadcast flag. Really, which is more burdensome, forcing cable companies to carry a few more channels or seizing control over huge swaths of the hardware market? I think the answer has more to do with which industry has the most effective lobbyists in the FCC. Really, who has the most effective lobbyists in the FCC, the cable companies that have had to deal with and capture lobby the FCC for decades or the consumer electronics and computer industries which have relatively seldom had to deal with mandates like the broadcast flag?

So, not only do we get the broadcast flag, the FCC delays the transition to HDTV once again. The consumers and citizens benefit from this inconsistency, how?

via Smart Cog

Comments (3) + TrackBacks (0) | Category: Broadcast Flag


1. Brett Bellmore on November 19, 2003 02:19 PM writes...

Strictly speaking, isn't there a serious 1st amendment issue when it comes to "must carry"? The government justifies regulating broadcast media despite the 1st amendment, because they must use the airwaves the government nationalized some years ago. But cable gives the government no such excuse.

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2. Ernest Miller on November 19, 2003 02:28 PM writes...

To the extent that cable companies are regulated monopolies or at the very least subsist through government determined right of ways, then I would argue that the government may, in fact, regulate them.

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3. ruihley on November 19, 2003 10:59 PM writes...

I can't believe that I, of all people, am going to spit out a libertarian line here but it seems to me that both prongs of your argument are, in fact, due to local government permission. Rights of way are on city owned land (given by local governments) and the only way cable ever became a monopoly was due to exclusivity granted in franchising agreements. So now I'm wondering why the FCC has authority over this. I've never really thought about it before. It was just kind of the way it was.

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