FCC DTV Consumer Education Order Remains on 8th Floor
A digital TV order requiring broadcasters to air public- service ads has been held up on the FCC’s eighth floor because of commissioners’ concerns and many higher priorities, agency sources said. A proposed order was circulated by Chairman Kevin Martin in mid-October (CD Oct 18 p7). But at least two commissioners haven’t voted on it, the sources said.
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The order would require TV stations to air spots on the transition and would make cable and satellite companies insert pamphlets with customers’ bills, Martin and other FCC officials have said. Broadcasters, satellite companies and telecommunications companies selling TV have said they should be given leeway to educate consumers on their own. The First Amendment prevents the FCC from forcing TV stations air particular content, a restriction that could apply to the ads, said industry lawyers.
Some commissioners are concerned that the chairman’s draft order would overstep the FCC’s authority, an official said. There are many questions on the FCC’s top floor about whether the commission has jurisdiction to do everything the order calls for, the official said. The commissioners haven’t spent much time studying the order because they've been occupied with other matters, another official said. That makes it difficult to handicap the final vote and whether the commissioners will push for significant changes in Martin’s draft rulemaking, the source said.
“Mandated content does raise a serious First Amendment question,” said lawyer John Crigler, a free speech expert. “I don’t think many people would disagree that it’s good to get this information out, but broadcasters on principle immediately get their backs up when they're told what to say.” Politicians are the only group that have a right to access to airwaves, he added. The federal government could buy air time to highlight digital TV if it thinks broadcasters aren’t doing enough, said Crigler.
EchoStar, Verizon and USTelecom are among those that have recently lobbied FCC staffers including aides to commissioners against regulatory mandates. EchoStar opposes any requirement that it add paperwork to consumer bills. “A requirement that a separate bill insert be added in addition to a notice on the face of a billing statement would be redundant, would drive up prices for consumers and would not be the best way to communicate the message to our subscribers,” said a Nov. 20 ex parte filing on a meeting between a company official and an aide to Commissioner Michael Copps. That same day, USTelecom met with officials of the Office of General Counsel to voice its concerns, according to an ex parte. “The First Amendment prevents the government from compelling individuals to speak.”