Analog Must-Carry Sunset Challenge Remains Alive

WASHINGTON ~ The end of analog must-carry was an ill wind for many smaller broadcasters, who challenged the regulation in court. Despite a number of legal defeats, the issue is not entirely dead. The U.S. Court of Appeals for the D.C. Circuit has scheduled oral arguments for Agape Church, et al, v. FCC for Sept. 27, 2013.

In the wake of the 2009 digital transition, the Federal Communications Commission temporarily required cable operators to offer both analog and digital signals of must-carry TV stations, which typically comprise smaller broadcasters. This was done so that the estimated 12 million analog-only cable households could continue to receive the signals of must-carry broadcasters. It was known as the “viewability rule. ” The rule was set to expire June 12, 2012, then extended by six months to give cable operators time to obtain and distribute low-cost converter boxes and to “notify consumers of the changes in service and to allow consumers to make necessary arrangements,” according to the FCC’s Small Entity Compliance Guide.

Agape Church, with the support of the National Association of Broadcasters and other petitioners, challenged the sunset, saying the FCC reinterpreted the 1992 Cable Act, which requires that must-carry signals “shall be viewable via cable on all television receivers of a subscriber whish are connected to a cable TV system.” The petitioners said that allowing cable operators to comply with must-carry through the use of converter boxes violated Congressional intent.

Jim Grant, general manager and associate minister for Little Rock, Ark.-based Agape Church and its TV network, VTN, said the DTV transition caused particular disruption in Arkansas because the population is poorer and generally more rural compared to other states. Even viewers apprised of the viewability sunset likely would forego the cost and bother of installing a converter box, significantly reducing the reach of Agape and its other broadcasting co-plaintiffs.

The broadcasters’ petition for a stay of the sunset was struck down by the D.C. Circuit last September. Final briefs were filed in February, with the oral arguments set, as mentioned, for this fall.