Despite the DBS industry's enormous growth and increase in technical capabilities over the past four years, their comments evidence little change from those filed in 1993. DBS providers still:
The DBS providers' comments are most remarkable for their failure to acknowledge the plain language of Section 25 of the 1992 Cable Act. No matter how much DBS providers might prefer to have broad discretion over the political broadcasting requirements set out in Section 25(a) and the capacity set-aside requirements set out in Section 25(b), Congress has expressly declined to afford them such discretion.
DBS providers oppose meeting extra public interest obligations under Section 25(a) because they claim the industry is still "nascent." But the relevant inquiry is whether the industry has, or will soon have, the capability to provide a full panoply of public service. The tremendous growth of the DBS industry and new compression technologies, which DBS providers themselves pro- claim, will increase DBS capacity and make the provision of extra public service benefits realistic and inexpensive.
At the same time, the DBS industry demands that the Commission diminish its statutory minimum obligations of providing reasonable access and equal opportunities to eligible candidates. But Section 312(a)(7) prohibits a flat ban on access for all federal candidates but those seeking national office, and also prohibits placing candidate ads on segregated channels. And Section 315's guarantee of equal opportunities prohibits a DBS provider from denying a candidate access to the same channel or similar audience demographics it has provided to his opponent. If DBS providers willingly entered into programming contracts that constrain their ability to control sales of advertising time, the Commission should preempt them for now, and forbid them in the future.
Despite the plain language prohibition on editorial control over Section 25(b) programming, DBS providers continue to claim the right to select programming, either on their own or after it has been declared eligible for carriage by a non-profit "clearinghouse." But the plain meaning of the term and the legislative history of the cable leased access law, which contains identical language, make clear that a DBS provider that has any power over whether a particular program or programmer gains access to 25(b) capacity is inevitably exercising editorial control. A "clearinghouse" that is voluntary, permits DBS providers to select programming, and/or has more than 10% industry representation on its governing board, also runs afoul of the prohibition.
DBS providers' proposals to define what constitutes "direct costs" under Section 25(b)(4) is similarly incompatible with the statutory language. They ask the Commission to include, inter alia, costs such as those to construct, launch and insure the satellite. But these are "joint and common costs" which would remain even if there was no set-aside. Their inclusion is contrary to the express Congressional directive that direct costs cover "only the costs of transmitting the signal to the uplink facility and the direct costs of uplinking the signal to the satellite."
Consistent with their plea that anything but minimal regulation will harm their "nascent" industry, DBS providers ask the Commission to require only the minimum 4% set aside under Section 25(b), and to apply the set aside only to video channels. But the with advent of new compression technologies, imposition of a 7%, as opposed to 4%, obligation on DBS systems with 100+ channels will hardly be burdensome. Nor has the industry provided a legal or policy basis why the set-aside should be limited only to video channels.
This set-aside should be measured in full channels, and not, as the DBS providers suggest, by using a "time/hour equivalency basis." The latter method would permit DBS providers to count scattered noncommercial programming they already offer, even if that channel also carries non- qualifying programming. This runs afoul of Section 25(b)'s express requirements that channel capacity be set-aside and that a DBS provider not have editorial control. Discrete channels would also make Section 25(b) programming easier to locate.
The industry's assertion that "National Educational Programming Suppliers" (entitled to discounted rates) and other for-profit programmers (not so entitled) are eligible to use the set- aside is an untenable reading of Section 25(b). Neither the plain language nor the legislative history demonstrate that Congress intended to broaden the eligible class of users. And Section 25(b)(5) makes clear that the discount is mandatory "for any channel" under Section 25(b).
Several of the DBS providers ask the Commission for a two year phase-in of their Section 25(b) obligations. In light of the four year delay in this proceeding and the fact that the DBS providers have been on notice of these requirements since the 1992 Cable Act was passed, this request is unconscionable. Forty-five days is all that is needed for the industry to prepare.
Finally, to the extent that a DBS provider carries over-the-air broadcast signals, the Commission should apply the same regulations governing such carriage on cable. It should also apply the program access rules to vertically-integrated DBS providers. But the Commission should decline the cable industry's bid to saddle DBS with other regulations that were specifically intended to curb cable's monopolistic abuses and to promote potential competitors like DBS.