D.C. appeals court denies CEA request to overturn FCC DTV tuner rule

A federal appellate court has denied a request from the Consumer Electronics Association (CEA) to overturn an FCC rule mandating digital television turners be built into most TVs by 2007.

On Oct. 28, the U.S. Federal Court of Appeals for the District of Columbia upheld the FCC order requiring manufacturers to include DTV tuners in most sets and found the CEA was incorrect in arguing that the Commission lacked authority under the All Channel Receiver Act (ACRA) of 1962 to require TV sets to receive digital signals. It also found the CEA argument that the FCC ran afoul of the Administrative Procedure Act’s (APA) requirement of reasoned decision making in its Digital Tuner Order to be “unpersuasive.”

Writing the court’s opinion, circuit judge John Roberts found that the ACRA’s authorization of the commission to “require that apparatus designed to receive television pictures broadcast simultaneously with sound be capable of adequately receiving all frequencies allocated by the Commission to television broadcasting” gave the FCC the authority to require set manufacturers to build digital tuners into TVs. The CEA had argued that the legislative history of the act showed that Congress limited the FCC’s power to ensuring that UHF frequency reception was comparable to VHF reception. In his opinion, Roberts found this argument to be without merit.

“CEA’s objection is that the Commission ‘relies almost entirely on a literal reading of the statutory language,’ — not the most damning criticism when it comes to statutory interpretation,” Roberts wrote.

Turning his attention to the CEA’s contention that the commission’s Digital Tuner Order violated the APA, Roberts referenced the association’s contention that the order “(1) addressed a problem that does not exist; (2) chose an irrational means to ensure that households can access DTV; and (3) failed to assess reasonably the costs of its mandate to consumers” before finding those arguments “unpersuasive.”

The opinion stated that the FCC “is not crying wolf” when it points to the necessity of viewers to receive DTV transmissions as a prerequisite to hitting the 2006 target for DTV conversion and cessation of analog television service.

“The Commission reasonably determined that a phased-in requirement that all televisions contain a digital tuner would necessarily increase production volumes and, through economies of scale, lower the price of digital tuners for all television purchasers,” Roberts wrote.

Responding to the court’s decision, CEA president and chief executive officer Gary Shapiro issued a statement in which he said: "We obviously are disappointed by the D.C. Circuit Court of Appeals ruling, which we are still studying. We will be reviewing the full opinion and consulting with our member companies, but of course will be compliant with any final court order.

"Everyone involved in the analog to DTV transition is trying his utmost to accomplish shared objectives. We certainly reached a critical tipping point a few weeks ago with the FCC's adoption of the historic cable plug-and-play agreement. From here, the Commission needs to be vigilant in ensuring that this well-crafted plug-and-play agreement is dutifully implemented and enforced with the interests of the American consumer top of mind.”

In a statement released on the FCC Web site following the decision, Chairman Michael Powell said: “We’re on track to have most television sets digital-ready by 2007. This will ensure that consumers are able to enjoy high-quality digital broadcast programming without the hassle and expense of hooking up a separate set-top box. We’re pleased that the court has upheld a key component of our digital television transition plan.”

For his part, NAB president Edward Fritts issued a statement in which he hailed the decision as a milestone on the path to the DTV transition.

In a statement on the association's Web site Fritts said, “Consumers buying TV sets will know that the receivers they buy will continue to receive all broadcast signals, even as broadcasting changes to digital. Chairman Powell and the FCC deserve congratulations for their strong leadership in advancing the digital transition."

To read the opinion, please visit: http://pacer.cadc.uscourts.gov/docs/common/opinions/200310/02-1312a.pdf.

For additional information, visit http://www.nab.org and www.ce.org.

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