Media Access Project: SUMMARY of COMMENTS OF DAETC,
et al. in DBS Public Service Obligations ProceedingMedia Access Project: SUMMARY of COMMENTS OF DAETC,
et al. in DBS Public Service Obligations Proceeding
Congress imposed public service obligations on DBS operators in 1992. Although the FCC has not yet implemented those requirements, DBS providers have used their exclusive access to publicly owned spectrum to deploy an increasingly competitive video service. The time has come for the public to realize the public service dividend to which it is entitled by law.
DBS has unlimited potential to educate and inform Americans of all ages and socioeconomic background, wherever they may live and work. However, this will happen only if the FCC follows the unusually specific mandates contained in Section 25 of the 1992 Cable Act. Thus, the Commission should now recognize the interests of citizens, including the needs of non-profit programmers, parents, viewers and candidates in the following ways:
With respect to the overall public interest obligation established in Section 25(a), the Commission should include a requirement that DBS providers reserve 3% of their capacity for public interest programming of their choice, provided that no less than 1% of that capacity is used for children's educational and informational programming. Moreover, DBS providers should be required to comply with the EEO provisions of 47 USC §634.
Section 25(a) also mandates equal opportunities for all political candidates, and "reasonable access" for all federal candidates. This means DBS providers may not segregate candidates on a single channel or unreasonably refuse to provide candidates access to a requested time and channel. The FCC should preempt any contractual agreements with programmers which are inconsistent with these preexisting statutory duties,
Section 25(b), the second part of the statute, requires DBS providers to reserve capacity for "noncommercial programming of an educational and informational nature." The best guidelines to define "noncommercial" are those already set out in Sections 399A and 399B of the Commu- nications Act, and in the FCC's various policy statements interpreting them. These guidelines permit underwriting, pledge drives and program related sales, but prohibit paid advertising.
Since Congress adopted language from terrestrial broadcasting for determining which entities should be permitted to use Section 25(b) capacity, the Commission should use its established guidelines for this purpose as well. These definitions would permit use of Section 25(b) capacity by many different entities to providing various kinds of services, but they have one important common denominator - the entity must be public, and/or nonprofit.
In determining the amount of capacity a DBS provider must set aside, the Commission must look to the size of the system. Larger systems must be required to set aside the full 7% of capacity contemplated by Congress. The first 4% of any system's capacity must be reserved exclusively for noncommercial programming. If, after a good faith effort, the capacity above 4% cannot be filled with noncommercial programming, it may be made available for educational and informational programming provided by a nonprofit that is no more than 80% commercial in nature. Moreover, programmers should be limited to one full-time channel on the collective 25(b) capacity, or, in the case of part-time programmers, to 5% of the total program time.
Section 25(b) unambiguously prohibits DBS providers from exercising editorial control over programming carried on the reserved capacity. To meet this stricture, the Commission should require DBS providers to create and fund an independent non-profit Programming Consortium to select this programming. To help finance this organization, the Commission should allow DBS operators' channel capacity obligation to be reduced by one channel for every 0.5% of gross revenues provided to the consortia. Because DBS providers will have no editorial control, they should be immune from any liability caused by this programming, much as broadcasters are immune from liability for candidate advertisements.
In setting rates for using Section 25(b) capacity, the Commission must keep in mind Congress' intent to make Section 25(b) affordable for nonprofit and public programmers. While the Commission is permitted to set rates at a maximum of "direct costs," it should set them so that the cost of access is at, or near, zero. Congress specified that these costs may include "only" the costs of transmitting the signal to the uplink facility and the direct costs of uplinking the signal to the satellite.
Finally, since DBS providers have been on notice for over four years, there can be no grandfathering of contracts inconsistent with Section 25(b). Instead, the Commission should require DBS providers to implement Section 25(b) obligations within 45 days after it adopts final rules.