Perhaps it was merely coincidental that the FCC tried to derail the legal challenge to its DTV tuner mandate, and not a conditioned response from being repeatedly emasculated by the judiciary.
On Sept. 15, the day before a three-judge panel was scheduled to hear oral arguments in the matter, the FCC filed a petition questioning the Court's jurisdiction. According to a scenario described in Court documents, it seems that the Consumer Electronic Association filed its appeal on the same day that the ruling appeared in the Federal Register last August. Arcane legal precedent indicates that appeals must be filed the day after a law appears in the Federal Register. Consequently, the judges had to spend time determining their own statutory authority before they ever got to the tuner ruling.
As it turned out, the FCC didn't need a curve ball to win this one. The court ruled that the agency had the authority to enact the DTV Tuner Act, based on previous rulings surrounding the All Channel Receiver Act (ACRA). The judges came to the conclusion that the tuner act was necessary to break the "logjam"--of broadcasters resistant to transmitting digital signals into the ether, and TV manufacturers resistant to adding digital OTA tuners just for a simulcast of "Friends."
While the court hailed the necessity of the tuner mandate to speed the DTV transition, it also noted the very loophole that deprives the act of teeth. Answering the CEA's assertion that the tuner mandate would force cable and DBS subscribers to pay for a useless component, Judge Roberts wrote that "the Commission may impose costs on
consumers for features they do not want. For some consumers, that is doubtless the consequence of the transition from analog to DTV itself. That transition is not a market-driven migration to a new technology, but rather the unambiguous command of an Act of Congress."
In a footnote, the judge went on to add, "...we note that subscribers to cable and satellite television services may avoid any additional costs associated with the purchase of an over-the-air digital tuner by purchasing a monitor --essentially a display screen without the capability to tune over-the-air broadcasts--instead of a television set."
Responses to the ruling went down party lines-- CEA, glum; NAB, gleeful; FCC, relieved; and Sinclair, opportunistic.
"We obviously are disappointed by the D.C. Circuit Court of Appeals ruling," said CEA President and CEO Gary Shapiro. "We will be reviewing the full opinion and consulting with our member companies, but of course will be compliant with any final court order."
NAB President Eddie Fritts struck a different tone than Shapiro: "The court's decision today upholding the FCC's DTV tuner requirement is a milestone towards completing the DTV transition. Consumers buying TV sets will know that the receivers they buy will continue to receive all broadcast signals, even as broadcasting changes to digital."
FCC Chairman Michael Powell, who's been battered by the courts over the agency's ownership regulations, responded, "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."
Two days after the ruling, Sinclair issued a statement applauding the court's decision and restating its call for tuner reception standards.
"The decisive nature of the ruling affirms the FCC's ability to now put into place a meaningful set of minimum performance requirements for DTV tuners. Sinclair has filed comments with the FCC suggesting specifics with respect to such requirements."
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