- The Washington Times - Wednesday, June 14, 2006

Two weeks ago, the Federal Communications Commission finally secured a Republican majority, something it has not had for almost a year and half. During that time, FCC Chairman Kevin Martin has had no choice but to work with the two Democrats on the commission and has generally done quite well minimizing the potential for the usual regulatory, big-government intervention in an incredibly dynamic telecommunications marketplace. Thus, one would think that there is cause for relief now that two new Republican commissioners have joined the FCC and that this agency would not begin regulating for no good reason.

But, surprisingly, the first issue teed up for decision is something called “multicast must carry,” a big government mandate pressed by broadcasters for years. In essence, this mandate would force cable and satellite providers to carry all the programming streams dreamed up by broadcasters, instead of allowing the marketplace and consumers to drive the demand for what they want to watch. The FCC has twice previously rejected multicasting requirements for two reasons. One, it’s a bad idea. Two, it’s unconstitutional.

A multicasting mandate would diminish the choices available to customers by forcing cable and satellite companies to carry the broadcaster’s choice of programs, i.e., more of the same, rather than the diverse cable networks that have to compete to be carried. And such a mandate would consume a lot of the capacity of the fiber-optic network that could and should be used for other broadband services that consumers want and deserve. As succinctly stated by Rep. Joe Barton, chairman of the House Energy and Commerce Committee, in a recent letter to Mr. Martin opposing this mandate: “consumer demand will sort out the right balance between broadcast and non-broadcast programming.”

Even if multicasting were a good idea, it would still be unconstitutional. The First Amendment protects cable operators’ rights to use their networks (built entirely with private investment) as they choose, and multicasting is an unduly burdensome infringement of that right. Moreover, under the Fifth Amendment, whenever cable operators are forced to carry broadcast channels there must be a means for them to be compensated for doing so. That doesn’t exist, and the FCC doesn’t have the power to create it.

Unfortunately, Mr. Martin has always supported this mandate. So, the test of whether President Bush will finally get a free-market-oriented commission that understands that government intervention is a last, and usually bad, resort rests with the two new commissioners, Robert McDowell and Deborah Tate. We hope they understand how important the stakes really are.

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