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Court Case Threatens Digital-TV Transition

The digital-television transition could come to a sudden halt later this year if a public-advocacy group can persuade a federal court that the early 2009 mandated cutoff of analog TV was enacted unconstitutionally by Congress and President Bush about one year ago.

On Feb. 17, 2009, every full-power public- and commercial-TV station in the country is required to stop analog transmission -- a mandate affecting millions of homes that currently do not have digital-reception equipment.

TV stations will need to rely exclusively on their digital signals. Consumers without cable or satellite TV will need to buy TV sets with digital tuners or acquire digital-to-analog converter boxes to view digital broadcasts on legacy analog-TV sets.

Public Citizen, a nonprofit consumer-advocacy group in Washington D.C., is trying to get the courts to strike down the Deficit Reduction Act of 2005 signed by President Bush Feb. 8, 2006. The DRA -- passed without a single Democratic vote in the House -- included the analog-TV cutoff.

Public Citizen’s argument isn’t that the mechanics of the digital-TV transition were unconstitutional. Instead, it claimed that the analog cutoff is unconstitutional because it was included in a law that was enacted unconstitutionally in violation of Article 1, Section 7, Clause 2 of the U.S. Constitution -- language that requires the House and Senate to pass identical bills, also called the bicameral-passage requirement.

“The DRA was presented to the president in violation of that requirement: The Senate passed one version of a bill, the House another, and then the Senate’s version was presented to the president, who signed it. Under the Constitution, that bill has not become a law,” Public Citizen said in an October 2006 court brief.

The DRA’s flaw, according to Public Citizen, was that the Senate passed a deficit bill with a Medicare durable-medical-equipment payment plan that had a duration of 13 months, while the House version had a duration of 36 months.

Legal attacks on the DRA have been waged in four courtrooms -- so far without success.

“In all the cases, the plaintiffs have lost,” Public Citizen attorney Allison Zieve said.

But Public Citizen gets another crack at the DRA Feb. 9 when a three judge-panel of the U.S. Court of Appeals for the D.C. Circuit will hear arguments on whether the Medicare inconsistency should invalidate the law that called for the demise of analog-TV service.