DBS ruling: FCC reserves 4% of channels for education

By Steve Behrens

Direct broadcast satellite companies will have to set aside 4 percent of their video channel capacity for noncommercial educational programming, the FCC said last week. For a DBS operation like DirecTV/USSB, with around 200 channels, that would make eight for education. The companies will get to choose the provider of each channel.

The vote Nov. 19 [1998] ended a long wait for set-aside rules. The 1992 Cable Act ordered the commission to reserve 4 to 7 percent of DBS capacity for noncommercial, educational use, and in 1996, pubcasters successfully defended the provision against a Time Warner law suit.

The DBS ruling may frustrate PBS by prohibiting a satellite operator from assigning more than one channel to any single programmer. PBS has been planning to offer three or more branded channels–for children, for lifelong learning and for formal education.

The FCC said its one-channel-per-programmer rule will encourage a wider variety of program suppliers. If any educational channels on a satellite remained unused, a programmer could be assigned a second channel, the commission said.

Programmers eligible under the rules will have to be “noncommercial and have an educational mission,” said Gina Keeney, chief of the FCC International Bureau, which handles satellite matters. “Noncommercial” would generally mean “nonprofit,” she told reporters later, though the FCC would decide eligibility case-by-case. If a commercial DBS operator controlled the programmer “that would be a problem” for the programmer’s eligibility, said staffer Rosalie Chiara.

DBS companies won’t be able to charge extra to viewers for the educational channels, Keeney said. But the DBS operator can charge the programmer up to 50 percent of its “direct costs” for the channel used. FCC staffers said those costs would be narrowly defined and would not include such major costs as the satellite launch. DBS operators with fewer than 25 channels would be exempt from the rules.

FCC Chairman William Kennard said he was disappointed that the commission is letting DBS operators choose their own programmers. By giving them the choice, he said, the commission reduces the chance that satellites will carry diverse programming “that might not fit neatly into a DBS operator’s notion of what is commercially viable.”

Commissioner Gloria Tristani agreed with Kennard and filed a partial dissent to the majority decision. Congress prohibited DBS operators from selecting programming, she said, and in practice the only way to accomplish that would be to prohibit them from selecting programmers.

Instead, the DBS companies might be required to survey their subscribers on what channels they’d like to receive, Tristani suggested. The company could select a slate of options and let subscribers choose.

Gigi Sohn, executive director of the Media Access Project, commented after the announcement that leaving the choice of programmers to the DBS operator will favor the most popular kinds of educational programmers–including PBS services, instead of taking a chance with the alternative services among her clients. This undercuts congressional intentions, she said. “Congress clearly intended for market-based decisions to be taken out of the process.”

Two other commissioners dissented on the one-channel-per-programmer rule. Commissioners Michael Powell and Harold Furchtgott-Roth said that Congress had not asked for the restriction.

Earlier news: Appeals court upholds DBS set-aside for education, 1996.

Later news: DBS companies courted by nonprofits seeking to use the set-aside, 1999.

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