NAB Makes Court Case Against FCC's Viewability Decision

The National Association of Broadcasters has filed the
initial brief in its challenge to the FCC'sJune decision that, as of December, cable operators no longer have to
provide both an analog and digital versions of must-carry TV station signals.

In August, the FCC denied NAB's request for a stay of the
viewability/dual carriage decision. NAB argues that millions of viewers would
lose access to broadcast stations "providing foreign language, religious
and other niche broadcast programming that have historically opted for
'must-carry' on cable systems."

NAB then asked the U.S. Court of Appeals for the D.C.
Circuit to review that decision. NAB says that decision was arbitrary,
capricious and does not square with congressional intent -- in the 1992 Cable
Act -- that must-carry signals have to be viewable without added equipment,
"not merely available in theory."

"By depriving must-carry stations of equal access to
the same audience as other stations and non-broadcast channels, the FCC reads
[the Cable Act] in a manner that permits cable operators to create the very
disparate treatment that Congress sought to prevent, thereby turning the
statute on its head," NAB said in its brief.

While cable operators will be required to 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, so the FCC violated
the Administrative Procedures Act. "[I]t is black-letter law that the FCC must
itself provide notice of a regulatory proposal," NAB said.

Cableoperators have been trying to get out from under the viewability mandate
for years, arguing that the dual carriage requirement is consumer unfriendly,
unwieldy, no longer justifiable in a fiercely competitive marketplace, and

The court has not yet scheduled oral argument in the case.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.