Appeals Court Upholds FCC Viewability Rule
October 31, 2008
The FCC and broadcasters won a legal victory Friday as a
federal appeals court rejected an attempt by some programmers to stop the FCC’s
order against material degradation of TV signals.
The United States Court of Appeals for the District of
Columbia Circuit ruled that the programmers, led by C-SPAN, had no standing to
bring suit because they are not directly affected by the order (cable
providers, not programmers, are affected) and did not show a likelihood of immanent
harm, such as an unconstitutional restriction of speech.
The case stems from the FCC mandate that most cable systems
deliver local HD programming where available, but also carry local channels to
any analog customers they may have. These “hybrid” digital-analog systems
consume extra bandwidth, and the programmers maintained that this hurt their
ability to be carried on cable systems.
But, “Petitioners have ‘failed to show how carriage of a
handful of must-carry channels would have any impact on cable operators’
programming choices,’” the court said, citing a brief in support of the FCC
The court also noted that most cable systems are already
all-digital, and all will be by 2012. It also noted that the FCC had narrowed
the viewability order, exempting small cable systems that are most likely to
have bandwidth shortages. Also, said the court, cable systems have said they
would ensure viewability regardless of the court’s order, so the relief the
programmers sought would do no good anyway.
"This is a win for consumers. As a result of this
victory, cable subscribers will continue to be able to watch their favorite
programming on local broadcast channels,” FCC Chairman Kevin Martin said in a
statement. “Today’s action preserves the Commission’s decision to protect
consumers and prevents cable companies from either choosing to cut-off signals
of must-carry broadcast stations after the digital conversion or requiring
customers to purchase higher priced packages with set-top boxes to receive the
same analog channels in digital.”