FCC Defends Viewability Rule Sunset

Says it was within its discretion and justified by changing state of technology

By John Eggerton -- Broadcasting & Cable, 2/14/2013 4:17:42 PM

The FCC said on Thursday that it was justified last fall in sunsetting the requirement that hybrid (digital/analog) cable systems provide must-carry station signals in analog format (the viewability rule, as broadcasters see it; the "dual-carriage" mandate, as cable operators view it).

That defense came in a brief filed with the U.S. Court of Appeals for the District of Columbia, where the National Association of Broadcasters and others filed suit against the ruling, asking that it be overturned and the mandate restored.

In its filing, the commission argues that its decision was consistent with statute and its discretion to interpret that statute, that its interpretation was reasonable and that it gave adequate notice that it was considering a device-based approach (cable ops must make boxes that convert digital signals to analog available at low or no cost).

"The FCC determined ...that the record evidence did not support the claims of broadcasters that allowing the viewability rule to expire on schedule would threaten the viability of must-carry stations," the FCC said.

The FCC decided last June that cable operators could fulfill their viewability obligation to make must-carry stations available to all subs by offering low or no-cost converters, rather than continue to require most cable operators to deliver the signals in both digital and analog formats. The FCC adopted the rule in 2007 to coincide with the 2009 DTV transition, and set it to sunset three years later. The commission concluded that in the five years since that 2007 date, technological and marketplace changes justified sunsetting the ban.

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.

Broadcasters had asked the FCC to stay the sunset, which the FCC declined to do. They then took the decision to court to try to stay the sunset, which the court refused to do. Broadcasters then filed a petition with the court seeking to reverse the FCC decision.

While cable operators must make low-cost converters available to analog customers so they can see the digital signals, the concern is those viewers might not go to the trouble for a few stations out of the scores or hundreds in their cable lineups.

NAB also argues that interested parties in the proceeding were not given notice of that equipment-based alternative, which the FCC disputes.