C-SPAN and Discovery Communications are among six cable programmers that filed suit Monday against what they labeled the Federal Communications Commission's new "dual-must-carry" rule, saying that the FCC doesn't have the authority and that the rule violates their First Amendment rights.
C-SPAN, Discovery, The Weather Channel, TV One, A&E Television Networks and Scripps Networks argued that the rule -- which requires cable to deliver a so-called viewable signal to its subscribers after the switch to digital -- means duplicating a digital signal in analog to their subsrcibers who have not switched to digital cable.
The cable networks said making "almost all" cable operators carry two versions of the same station forces channels like C-SPAN and the others off the air, violating their First Amendment rights. They also argued that the FCC exceeded its congressional authority to regulate programmers.
The suit was filed in the U.S. Court of Appeals for the District of Columbia.
“The Supreme Court has made it very clear that cable programmers have First Amendment rights,” said C-SPAN chairman Brian Lamb in announcing the suit, “so it is frustrating to us and the other companies involved in this appeal that our audiences risk losing our programming and that we have to go to court just to get a fair shake from the FCC.”
But didn't the cable industry sign off on this rule? "There is a difference between cable operators and cable programmers," said C-SPAN corporate vice president and general counsel Bruce Collins. "The programmers are the ones whose First Amendment rights are being abused."
Why these six programmers? "I can't speak why these joined in particular," Collins said. "But there are dozens and dozens of programmers. These companies represent many more than six networks."
In September, the FCC voted unanimously -- with some partial dissents -- to mandate that cable make must-carry TV stations' digital signals viewable to all customers, analog and digital, after the Feb. 17, 2009, switch to all-digital broadcasting.
In order to ensure that all must-carry TV stations are viewable by all subscribers after the switch to all-digital broadcasting, cable operators were required, in addition to carrying digital signals, to convert digital signals to analog, either at the headend or with converter boxes, for their analog cable customers.
Cable called that a "dual-carriage" mandate at odds with earlier FCC rulings, while broadcasters framed it as a clarificaiton of the existing "viewability" mandate.
The commissioners framed it as addressing the viewing needs of analog cable viewers, just as it is working to ensure that no analog broadcast customers lose their pictures.
The FCC set that mandatory carriage requirement to sunset in three years, mirroring a voluntary three-year carriage agreement the cable industry was reportedly ready to offer up.
But in a victory for cable in general, the commissioners did not require cable systems to carry "all bits" that a broadcaster delivers, as had been initially proposed as a tightening of the mandate that cable not "materially degrade" the broadcast signal. Broadcasters had pushed for the "all bits" change to the degradation definition.
That definitional change would have put a big crimp in cable's ability to use compression and switched-digital techniques to help make room for both broadcast signals that met the FCC's current requirements of "no material degradation" and still have bandwidth to provide the broadband services the FCC is trying to encourage.
"We are pleased that the FCC’s action today adopts cable’s carriage plan," National Cable & Telecommunications Association (NCTA) President Kyle McSlarrow said of the FCC decision at the time.
NCTA has said before that, for its part, it is not going to appeal the FCC order, but had no comment on the move by Discovery, C-SPAN and the others.
"The 1992 Cable Act is very clear," said FCC spokeswoman Mary Diamond. "Cable operators must ensure that all local broadcast stations carried pursuant to this Act are “viewable” by all cable subscribers. The Commission’s Order made sure that the over 40 million cable subscribers with analog cable will continue to receive the same broadcast stations after the transition.
"Ultimately, the American consumer is, and continues to be, our highest priority as we make this conversion to digital television. All Americans with cable – regardless of whether they are analog or digital subscribers – should be able to watch the same broadcast stations the day after the digital transition that they were watching the day before the transition. "