Federal Court Won't Review Dual-Carriage/Viewability Rule Sunset

A three-judge panel of the US Court of Appeals for the DC circuit has denied a broadcaster appeal of the Federal Communication Commission's 2012 decision to sunset the viewability rule, deferring to the FCC's judgment and saying it had violated no rules of procedure.

The sunset in question was of the 2007 rule (the viewability rule, as broadcasters see it; the "dual-carriage" mandate, as cable operators view it) that required cable operators to downconvert digital must-carry TV station signals to analog format for their analog customers, an increasingly small percentage of the cable universe. The sunset did not mean cable operators no longer had to accommodate their analog customers, only that they could now do so by providing home conversion equipment for free or at an "affordable" cost rather than being required to deliver both an analog and digital version of must-carry stations. The National Association of Broadcasters appealed the decision, saying it 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." The three judge panel -- Judges Brett Kavanaugh, Harry Edwards and Stephen Williams -- did not agree. They concluded that the appeal lacked merit because the rule had only been a stopgap measure, pointing out that in 2012 there were more home conversion devices to display digital channels on analog sets (27 million) than there were analog cable customers left (12.6 million).

[Dec 31]