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Appeals Court Upholds FCC Viewability Rule

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 rules.

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.”