FCC Releases Viewability Order
Commissioner Pai sympathetic to broadcast arguments, but First Amendment concerns take precedence
By John Eggerton -- Broadcasting & Cable, 6/12/2012 1:01:25 PMreleasing the final order sunsetting this December its requirement that cable operators with hybrid analog/digital systems deliver must-carry TV stations in both formats.
The commissioners had voted unanimously to lift the requirement Monday night or the rules would have sunset immediately on Tuesday.
Broadcasters had been pushing the FCC to extend that requirement another three years, while cable operators said it was time to lift it and give them more capacity to offer other services consumers might want. Both sides were doing hefty lobbying in the run-up to the vote, but cable's arguments held sway in the final order.
Cable operators must still provide dual carriage for a six-month transition period, give customers 90 days of warning before they end their analog transmissions, and face potential reinstatement of an analog signal if there are too many consumer complaints.
The National Cable & Telecommunications Association was naturally pleased, and broadcasters were not.
"NAB remains concerned that today's FCC decision has the potential to impose negative financial consequences on small local TV stations that are a source for minority, religious and independent program diversity across America," said National Association of Broadcasters spokesman Dennis Wharton. "If that is the outcome, millions of viewers will be the losers. NAB will be reviewing our options with our Board of Directors. We would like to thank the members of Congress who urged the FCC to extend the viewability rule another three years, along with groups like Consumers Union that also weighed in on the side of local broadcasters."
NAB was already contemplating its options at a board meeting Tuesday, which could include a petition for reconsideration, a trip to court or no action.
In a statement explaining his vote, new Republican Commissioner Ajit Pai said that it was not an easy decision for him -- Democratic Commissioner Mignon Clyburn said the same thing -- and that he agreed with broadcasters that the FCC's 2007 Viewability Rule, which required carriage, seemed more consistent with statute, but that Constitutional concerns essentially trumped that. "Cable operators present a powerful argument that renewing the viewability mandate on the state of the current record would run afoul of the First Amendment," he said.
That case, he said, was that "the rule change we adopt today will have absolutely no effect on the ability of about 80% of cable subscribers to view must-carry stations. And the diminishing minority of cable customers who have analog-only service will be able to continue viewing must-carry stations on cable systems simply by obtaining affordable [converter boxes] that cable operators must offer as a result of this order."
The order also extended for three years a waiver for small cable operators from the FCC requirement that cable operators deliver TV station signals in HD if they are delivered in HD over the air.
That was a victory for the American Cable Association, which specifically represents those operators. ACA President Matt Polka praised the sunset of the viewability rules, but was particularly pleased with the waiver renewal.
"ACA appreciates that the FCC recognized the technical and economic challenges faced by smaller cable systems, justifying policies that do not disproportionately harm the consumers served by many of ACA's rural-based member companies," he said. "The exemption will provide smaller systems with the additional time they need to upgrade so that they, too, can eventually provide must carry signals in HD."
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