FCC Draft Would OK Distant Station DBS Carriage When Outdoor Antennas Can’t Get Local One
DirecTV and Dish Network could import the signals of far-away TV stations only when subscribers couldn’t get in-market outlets with the same network affiliation using outdoor antennas, under a draft FCC order starting to get attention from lobbyists and commissioners, agency officials said. They said another draft order would let a DBS provider carry stations from adjacent markets that are deemed significantly viewed (SV) in an area if the company sells the subscriber a package of local broadcasts. The drafts are seen by officials inside and outside the FCC as a mixed bag for broadcasters and satellite companies, giving each some of what they had sought in follow-through on the Satellite Television Extension and Localism Act. The orders generally comport with rulemaking notices issued this summer by the commission, which has until Nov. 24 to implement STELA.
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A draft order from the Media Bureau implementing STELA would require that local-into-local service be offered for a significantly viewed (SV), but out-of-market, station to be carried, FCC officials said. The order would require a DBS company to carry the HD version of an in-market station if the DBS provider wants to distribute an SV signal in that format from a station with the same affiliation, agency officials said. A bureau spokeswoman declined to comment.
A DBS company could distribute the SV signal to a subscriber who didn’t also get the local station with the same affiliation, an agency official said. That’s because the draft doesn’t appear to speak to whether the in-market station must be offered as part of a local-into-local package. Broadcasters have sought such a requirement. DBS providers have said they shouldn’t have to meet it.
"The big issue” in the STELA proceedings is how the FCC handles SV, said lawyer Scott Flick of Pillsbury Winthrop, who has TV-station clients and who hasn’t seen the drafts. “Whenever you bring in another station of the same affiliation, it potentially undercuts viewership, which potentially undercuts your income” from retransmission consent deals, he said. “To the extent you get into a retrans fight” with a pay-TV provider that can use SV programming from outside the market, that “reduces the broadcaster’s ability to negotiate with them and get the full value for that station in that market,” Flick said. SV stations are carried on a county-by-county basis, so a DBS company wouldn’t necessarily be able to carry the neighboring station to the entire market, he noted.
The other draft order, from the Office of Engineering and Technology, is seen as a boon to broadcasters, since the draft would require a DBS provider to model signal strength and test it in the field based on outdoor, not indoor, antennas, agency officials said. Broadcasters have sought the use of outdoor antennas, contending that it would be harder to get a signal indoors. Dish and DirecTV have sought an indoor antenna standard. The draft would call for outdoor antennas for all computer modeling using the Longley-Rice model and field testing, agency officials said.
A draft further notice of proposed rulemaking from OET asks about using that model and is a way to explore whether its accuracy could be improved, agency officials said. The draft asks about possible changes to the model, they said. An OET representative had no comment.
Congress continues to view SV satellite signals as distant, rather than local signals, representatives of the NAB told aides to Commissioners Michael Copps, Mignon Clyburn, Meredith Baker and Robert McDowell, according to a filing posted this week to docket 10-152. The “fundamental structure” in previous law wasn’t changed in STELA, and DBS providers should be required to carry locals stations as a prerequisite to carrying SV stations, as was the case in the previous legislation, the broadcasters said. The commission should use the same language in carrying out STELA, since “a different construction of essentially identical language could not, as a matter of law, be rationally sustained,” they said.
DirecTV said Congress made changes to STELA meant to encourage SV service and to “put satellite on the same footing as cable,” it reported telling the aides in a later meeting. SV stations are local since they become SV through off-air viewing patterns and are governed by local copyright license, the company said. SV service won’t disturb retrans negotiations, since the stations cover a “small sliver” in the vast majority of designated market areas, said DirecTV. The company said Congress made specific changes to prevent station blocking, leaving no “textual basis” for broadcasters’ suggestion for “same network service” that could allow failed negotiations for one local station to result in lost carriage of SV stations.