Court Backs FCC On Dual Viewability

Appeals Court decision a victory for broadcasters, loss for C-SPAN, Discovery and other cable nets that filed suit

In a victory for the FCC and broadcasters, U.S. Court of Appeals for the D.C. Circuit has upheld the commission’s dual viewability decision. That decision requires cable operators to deliver a viewable signal to their customers after the transition to digital broadcasting, including delivering versions in analog and digital if that's what it takes.

C-SPAN, Discovery Communications, The Weather Channel, TV One, A&E Television Networks and Scripps Networks took that decision to court in February. The networks argued that it would mean duplicating a digital signal in analog to their subscribers who have not switched to digital cable and that 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.

Broadcasters had countered that the programmers don't have standing to bring the case in the first place and don't have a case in the second place.

The court agreed with broadcasters, saying the programmers did not have standing to bring their appeal. It also noted the number of unknowns, including just how many cable operators would be forced by capacity constraints to bump programmers because of the viewability requirement and because cable operators had pledged to follow the viewability order whether or not a court struck it down.

To show cause for action, the court said, the programmers would have to find at least one cable system bound by the order that is operating at full capacity and did not play to follow the order.

Lacking that, the court said, causation remains speculative and the petition was dismissed without reaching the merits of the challenge.

"This decision represents a big win for broadcasters,” said National Association of Broadcasters spokesman Dennis Wharton. “We’re pleased the court accepted the FCC’s sensible viewability rules and rejected speculative claims by C-SPAN and other cable programmers that any must carry requirements violate their First Amendment rights."

In a statement, FCC Chairman Kevin Martin said of the court victory: "I am pleased that today’s decision will ensure that nearly 20 million households across the nation will continue to receive local broadcast channels over their analog cable service after the digital TV transition.  This is a win for consumers.  As a result of this victory, cable subscribers will continue to be able to watch their favorite programming on local broadcast channels."

Martin said the decision would prevent cable companies "from either choosing to cut-off signals of must-carry broadcast stations after the digital conversion or requiring customers to purchase higher priced packages with set-top boxes to receive the same analog channels in digital.”

Cable operators have argued that they already have an incentive to make sure their customers continue to receive the programming they want.