Broadcasters took aim at cable programmers attempting to overturn the Federal Communications Commission's "viewability" order, which requires cable operators to carry must-carry TV stations in analog and digital if necessary to give all of their customers viewable signals after the transition to digital.
They argued 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.
C-SPAN, Discovery Communications, The Weather Channel, TV One, A&E Television Networks and Scripps Networks took that decision to court in February, arguing 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.
The National Association of Broadcasters argued in a brief to the D.C. Court of Appeals, which is hearing the cable networks’ challenge, that the court should reject the rule challenge for a number of reasons.
The NAB argued that the networks have no standing because they have not demonstrated any First Amendment speech burden beyond the "vague" allegation that the requirement would prevent them from putting programming on some cable systems.
The trade group also argued that the networks did not say how they would be burdened given the "enormous growth" in cable capacity.
Broadcasters also pointed out that the FCC rule mirrors a voluntary commitment cable was ready to make. "Petitioners assert no basis for the court to believe that, in the absence of the order, cable systems would renege on their commitment," the NAB said.
The NAB also argued that the FCC did not exceed its statutory authority, and that since the Supreme Court upheld the must-carry regime in 1992 -- which requires cable operators to set aside up to one-third of their capacity for must-carry TV stations -- the FCC's new rule furthers the same government interest since "must-carry is effective only if local broadcasters’ signals are actually viewable by cable subscribers."
The FCC commissioners last September agreed that in order to ensure that all must-carry TV stations are viewable by all subscribers after the switch to all-digital broadcasting, cable operators would be 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 clarification 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.
Whatever you call it, cable operators must carry broadcasters' HD signals in HD, and in at least as high a resolution as they carry other programming, which is to ensure that cable operators do not favor their own HD programming over that of broadcasters.
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.
The D.C. Court will hear oral argument in the case Sept. 15.
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