D.C. Court of Appeals Reviews Final Briefs in Dish Petition Urging Review of FCC Encoding Rules
Dish, NCTA and the FCC filed their final briefs in the U.S. Court of Appeals for the D.C. Circuit, concerning Dish’s petition to review whether the FCC has jurisdiction to adopt encoding rules for all MVPDs, including satellite. Dish reiterated its claim that Section 629 of the Communications Act does not give the commission jurisdiction to adopt the rules. NCTA further urged the court to deny Dish’s petition.
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The NCTA attempts to cut “too fine a distinction when it argues that the FCC has not as much authority as it claims, but just enough to extend the encoding rule limits beyond the NCTA’s own members, to satellite operators as well,” Dish said in its reply brief. In nearly nine years, between the original order and Dish’s appeal, the court “has substantially clarified the scope and proper application of the FCC’s ancillary jurisdiction.” The commission “does not need to … be given an opportunity to pass on the implications of such subsequent precedent,” Dish said. Section 624, which covers regulation of services, facilities and equipment, applies to cable systems and not satellite providers, Dish said. Section 629 “directs the FCC to assure the competitive availability of navigation devices.” The latter provision “cannot plausibly be construed as a tool for expanding the scope of the former beyond cable operators,” Dish said.
NCTA claimed that Section 629 gives the commission full authority “to apply the encoding rules to all MVPDs, despite the limitation in Section 629(f),” which says nothing shall be construed as expanding any authority the FCC may have had before 1996. If Congress wanted to expand the scope of Section 624, “it would surely have done so by amending Sec. 624(a) to make it applicable to all MVPDs,” NCTA said.
The FCC adopted the encoding rules as part of a suite of complementary labeling, compliance testing and other requirements “that permit compatible retail devices to access video programming and other services within the secure systems in which MVPDs acquire, distribute and offer content and services,” NCTA said. The FCC needed to apply the encoding rules without discrimination to all of the MVPDs covered by the statute, it said. NCTA and FCC agreed that Dish’s challenge is barred by Section 405 in the Communications Act. That statute requires that “any argument to be made before this Court must have been raised either to the full commission or the designated authority,” NCTA said. This court lacks jurisdiction over Dish’s challenge to the commission’s authority to adopt encoding rules, it said.
The NCTA “resorts to sophistry” by arguing that the commission has less jurisdiction than it claimed “but just enough to adopt the encoding rules at issue here,” Dish said. But new authority “is no different than expanded authority,” it added: “Neither is permitted by the plain language of Section 629(f)."
The FCC determined it had explicit authority to adopt the rules (CD April 2 p18). It also determined that applying encoding rules to all MVPDs, including DBS providers, “would most effectively ensure that consumer expectations regarding the functionality of DTV products are met,” the commission’s reply brief said. The public interest in accommodating the expectations of consumers outweighs the private interest of DBS providers, the commission said. “Dish has given the court no good reason to disturb this reasonable policy judgment.”