The Superbowl in HD?

The Ind drums up a little panic about the Superbowl. With all good Saints fans sure that this is the year the team will go to the Superbowl the yearlong dispute between KLFY and Cox concerning CBS’ HDTV signal takes on a sudden signficance: unless a deal is cut Cox won’t be carrying the game in High Definition.

In New Orleans a similar conflict between its CBS affiliate and Cox has gotten even nastier: the city might be blacked out altogether.

Before you roll over and decide that the fates just plain have it in for Louisiana you should know that you can truck down to the hardware store and get an antenna for that fancy HDTV you bought for Christmas and watch it over the air–for free–just like gramps usta do. Or you could (horrors) just watch it in analog.

As much as I enjoyed the second half of the recent Philidelphia/Saints game and suspect that, my tongue in check aside, not seeing the Superbowl in HD will really be a painful issue for some loyal fans this is not the sort of question this blog usually focuses on. But it is a useful example of how the regulatory system–meant to protect local consumers–has been captured instead by almost purely corporate interests.

In a rational world we’d expect that since the FCC exists specifically to protect local consumers and communities from the predations of corporate giants that cable companies would simply be required to carry significant local programing–and not to relegate it to second-best levels of service. The basis for judgment would have been “the public good” and what the FCC said met that criteria would have usually been done. Not so long ago something like this–a question of local carriage of important local content–would simply have been dealt with on a uniform national basis and there’d be no question about KLFY’s best signal being available to all.

Obviously, that’s not the way it is working out.

To understand why we need to look at a little FCC history.

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This whole mess is the product of a regulatory system gone awry. The FCC is probably the purest case of the Reaganomics doctrine that the best, indeed only, conceivable solution to any public problem involving a commercial interest is “deregulation.” Examining the consequences of putting that idea into practice in this area is instructive.

From back in 1934 till 1984 the clear basis for making decisions about the public airways was “the public interest.” Licenses were granted and regulations promulgated based on that principle. No one believed that the public interest was anything like the same as “commercial interests” and real consideration was given to purposes that were not basically motivated by greed–for instance at the beginning it looked like 25% of the airways might be allocated to “public” stations dedicated to educational purposes. Vigorous industry opposition resulted in a compromise that lead to commercial stations carrying a set number of hours of “public interest” programming. In 1940 the FCC calmly required the breakup of NBC on the grounds that having a single dominant television network wasn’t good country. The creation of ABC and the survival of CBS was a consequence of this regulation and most sizeable markets acquired three competing stations. “The public interest” was a vibrant and enforced principle for most of the FCC’s history.

But in 1984 this basic presumption was changed when the framework for controlling access to the public airways was shifted from the idea that holding a license was earned by consistent public service to the idea that the spectrum was held as a property right granted to the highest bidder. Public auctions replaced public interest hearings and were a symptom of a new order in which a scarce, publicly owned resource was recreated as valuable private property. That ideology radically undercuts the public purpose of the FCC and its history since then has been one of retreat. Monopoly regulation has basically ceased and the requirement to present public interest programming was dropped. Even the “fairness doctrine”–which required coverage controversial issues of public importance, and required broadcast stations to present such issues in an honest, equal and balanced manner was banished. That requirement had been part of licenses since before the creation of the FCC and was based on the law that created the commission itself. But the FCC abolished it 1987. A law passed by Congress to reassert the traditional interpretation of the fairness doctrine was vetoed by Reagan in that same year.

So? So what does all this social history have to do with our (not) seeing the Saints play in the Superbowl in HD?

Patience Grasshopper….

Once we had recreated the airwaves as private property and dismissed the common good along came technology to reveal how thoroughly we’d mucked things up.

Digital happened. Digital technologies turned out to be more efficient at using the airwaves than the older analog methods and suddenly huge swaths of the airwaves were clearly, unmistakably wasted. The FCC still took its mandate to allocate the spectrum wisely seriously in the narrow sense that just not using valuable commercial property was considered a bad thing. So it set about trying to reallocate spectrum.

You’d think that’d be easy. If the spectrum is public property well, then, just allocate enough of the spectrum to accommodate the stations at digital HDTV amounts of bandwidth and take the rest back for other worthy public purposes. Oh yeah, HD technology had also arrived to muck with us more. (Note that “other worthy public purposes,” we’ll get back to it.)

But now that spectrum was effectively “owned” by its licenses and no longer owned by the public and loaned to profit-making entities in return for good behavior the FCC had conceptual troubles moving squatters off “their own” property.

The upshot was a mess of shoddy and conceptually inconsistent transition rules which allowed local television stations to choose between one HDTV or four Standard Definition TV (SDTV) digital stations. In the interim they can have both HDTV and SDTV since the FCC has gifted them with an extra channel slot so that they can run both analog and digital signals during the extended transition tine. A hard date for the transition has been set for 2009 — so stations will no longer have the luxury of broadcasting both an HD and an analog SD station. So the current conflict over dual carriage on Cox can’t last beyond that point–the 2009 superbowl will be broadcast only in digital.

At that point the station will have to choose between and HDTV signal and four standard definition (but still digital) channels. KLFY is clearly at least considering the four channel alternative and wants to lock a contract in place with Cox that will obligate Cox to carry whatever they decide to offer. (Probably more than a majority of KLFY viewers get their signal over cable. Not being carried by cable would kill advertising revenue.) Cox has demurred.

But KLFY, if it must, can force Cox to carry it by invoking the “must carry” rule. That rule requires Cox to carry every major local broadcaster’s main signal–but ONLY their one, main station. And KLFY, in order to invoke the must carry rule, has to agree not to charge anything for its station. As matters now stand KLFY would really pretty much have to choose to offer only the one, main station in HDTV. To do otherwise would put their product at a competitive disadvantage: the secondary channels, would both carry lightweight material and wouldn’t be on local cable. The main channel would be broadcasting an inferior picture to its competitors. Neither situation would sit well with advertisers who are the station’s source of income.

So…the threat of a Saints’ superbowl blackout on HD in Lafayette (likely IMHO) and the threat of a total blackout in New Orleans is all part a tangled mess of regulations that make events like the superbowl pawns in a chess game between huge corporations with both sides seeking to advance their profits and preserve their future choices. NOBODY, nobody in this equasion any longer has to worry much about the “public good” since the FCC has decided that things like public service no longer count in the regulatory game.

It’s not your airwaves. It’s their property.

Any Saints’ blackout will be due to that mistake…both local actors are just playing by the (stupid) rules made by an FCC whose ideology isn’t in align with reality. The error lies there.

(Oh yeah…Go Saints! The Chicago game is at 2:00. Don’t miss it. Light a candle, pray, send vibes, work a little voodon…whatever is necessary.)

PS: I promised to get back to “other worthy public purposes” for the airwaves. You’ll recall that this entire digital mess is motivated by the desire to reallocate the airwaves more efficiently since digital delivery used less of the airwaves to accomplish the same purposes. The newly available airwaves which will be made available will be valuable, prime real estate. (Some spectrum, like the wifi spectrum is considered trash spectrum since it is so subject to interference from little things like rain and leaves.) What will the FCC do with all that prime public property? No one doubts that they will do anything but sell it off to the highest bidder, once again creating rare, extremely valuable private property out of what days before belonged to us all.

What else could be done with it?

Oh, lots of things besides handing our property over to rich and demonstrably greedy telecom corporations in return for a one-shot cash influx destined to disappear into the federal government. They could make a real difference if they chose to think of it as a matter of the “public interest.”

For instance, they could split that spectrum between two uses:

1) Make half of it “open” like the wifi portions of the spectrum. Let anybody use it. It’s pretty clear to all with eyes that that small, trash spectrum, being left open has made it hugely valuable to public. Much more valuable to the people than any “owned spectrum.” And arguably much more valuable to the economy than any similar slice of the commercial spectrum.

2) Dedicate half of it to local units of government for use as a competing publicly-owned data network for public use. Most of the reason that wireless networks dont’ have the punch to scale up to large networks lies in the scarcity of bandwidth. This might not solve the whole problem but it would create real competition for the incumbents–something that would save the public more money and put more money to the local economy than is easy to imagine. (And would provide for a publicly-owned last mile alternative that would make “bad” net neutrality moves by the corporations practically impossible since their monopoly on the last mile would be broken.)

But nobody thinks things like this are likely to be seriously considered since the ideology of private property finds these things abhorrent. It could be different–if we cared enough to assert that the public airwaves are, indeed, public. And should be used in the public’s best interest.