Academic journal article William and Mary Law Review

Riding on a Diamond in the Sky: The DBS Set-Aside Provisions of the 1992 Cable Act

Academic journal article William and Mary Law Review

Riding on a Diamond in the Sky: The DBS Set-Aside Provisions of the 1992 Cable Act

Article excerpt

As with all communications technology utilizing the electromagnetic spectrum, Direct Broadcast Satellite (DBS) systems have fallen under the watchful eyes of Congress and the Federal Communications Commission (FCC). Despite being the most successful consumer electronics product ever introduced,(2) DBS has been unable to escape the "public trustee" status that has shackled traditional broadcasting systems for decades. Section twenty-five of the Cable Television Consumer Protection and Competition Act of 1992 ("1992 Cable Act"), which Congress incorporated into the Telecommunications Act of 1996 ("1996 Act") as section 335,(3) placed a series of obligations on DBS operators designed to foster access to the DBS platform.(4) Among these obligations, the requirement that operators set aside four to seven percent of their carriage capacity for noncommercial, educational, or informational programming(5) is at best a dubious application of the public interest mandate. DBS programmers challenged the set-aside requirement as soon as Congress enacted it, but a significantly divided panel of the U.S. Court of Appeals for the District of Columbia Circuit ultimately upheld the obligation in Time Warner Entertainment Co. v. FCC.(6) In November 1998, after a delay of nearly six years, the FCC finally adopted regulations to implement the set-aside requirements of the 1992 Cable Act.(7)

This Note explores the rationale for imposing a set-aside requirement on the fledgling DBS technology. The first section provides a brief history of the DBS industry, including an overview of DBS technology, a survey of current DBS providers, a comparison of DBS to competing video programming services, and an examination of the relevant statutory and judicial provisions governing the DBS industry. The second section discusses judicial treatment of mass media regulation by examining the foundational cases that first supported the principle of programming in the public interest. Against this backdrop, this Note then explores the courts' attempts to apply such principles to the DBS public interest requirement in Daniels Cablevision, Inc. v. United States(8) and Time Warner. The third section discusses the regulations released by the FCC in late 1998. Finally, the fourth section offers a critique of the rationale behind the imposition of public interest programming requirements on DBS providers. This section disputes the applicability of the models developed in Red Lion Broad. Co. v. FCC(9) and FCC v. Pacifica(10) to this new technology, and argues for an alternative view of DBS's obligation to the public interest--one that would better account for DBS's unique attributes and role in the mass media marketplace.

THE BUSINESS OF DIAMONDS IN THE SKY

The Game and Its Players

Once the subject of science fiction,(11) DBS technology has existed for almost two decades.(12) Although the FCC first authorized DBS service on an interim basis in 1982,(13) full-scale commercial service did not begin until June 1994.(14) DBS works by transmitting programs from the Earth to satellites positioned in specific geostationary orbital "slots,"(15) which then disseminate the programs directly to customers who pay to receive the service.(16) Unlike traditional C-Band satellite dishes designed to capture low-powered signals from a multitude of orbiting satellites, the newer DBS systems use mid-to high-power signals transmitted in the Ku-band.(17) As a result, DBS dishes need not be the size of roadside billboards: the high-powered services DirecTV/USSB and EchoStar use eighteen to twenty-four inch dishes, while the mid-powered service Primestar uses thirty-six inch dishes.(18)

The public's response to this new media technology has been remarkable. The DBS market grew from 1.7 million subscribers in September 1995 to over 10.2 million subscribers by November 1998,(19) establishing DBS as the fastest growing consumer electronics product of all time. …

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