Broadcasters Ask FCC to Stay Viewablity Order Pending Judicial Review
A group of broadcasters and the NAB asked the FCC to stay a recent order that will let the so-called DTV viewability requirements for cable operators expire (CD June 13 p6). In a stay petition filed this week (http://xrl.us/bni6du), Agape Church, London Broadcasting, Una Vez Mas and the NAB argued the commission’s June order was counter to multiple sections of the Communications Act, violated the Administrative Procedure Act and will lead to irreparable harm to TV stations if it’s not stayed. The order let cable operators stop carrying must-carry stations in both analog and digital after Dec. 12, if they make certain equipment available to analog subscribers.
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Additionally, the broadcasters asked the U.S. Court of Appeals for the D.C. Circuit to review the order, marking the sixth appeal of an FCC order to that circuit since July 13, court filings show. A Media Bureau spokeswoman declined to comment on the petition and lawsuit.
The order will lead to confusion and disruption for analog cable viewers of must-carry stations, said Cesar Angulo, general manager for TTBG San Francisco OpCo, the licensee of KTNC-TV Concord, Calif., in a declaration attached to the petition. “My station’s experience in the digital television transition is telling,” he said. “Notwithstanding the years provided for the transition and a lengthy and intense viewer education effort which was heavily funded by the government ... we faced extreme difficulties,” he said. “To this day I deal with a great number of calls from viewers trying to figure out how to view the channels over the air,” he said. Contrast all the planning and time leading up to the DTV transition with the six months left before cable operators are let out of viewability requirements, he said. “Even if they are aware of the change, many viewers will not obtain the additional equipment needed,” and will probably watch other analog broadcast or cable programming, he said.
American Cable Association Matthew Polka said the petition’s no surprise. “The FCC concluded that repeal was consistent with the public interest given changes in the marketplace and technology,” he said. “Of course, we know the broadcasters don’t think there have been any changes since 1992.” There’s no valid legal reason for delaying the order or the benefits it will offer consumers, an NCTA spokeswoman said. “The FCC’s decision to let the dual carriage mandate expire will promote the deployment of faster broadband and the expansion of new and exciting digital services.”
Planning for an “orderly transition” for analog cable must-carry viewers is impossible in such a tight time frame, said Una Vez Mas TV Group CEO Terence Crosby in a separate declaration. “Unlike [what] was the case with the digital transition, the FCC has mandated an abrupt change that targets must-carry stations only,” he said. “The top-rated stations in each market have no incentive to alleviate our plight by broadly educating television consumers,” he said.
The broadcasters’ petition also hit on perceived procedural flaws with the order. “First, the FCC did not adequately explain why facts that it previously said would support a three-year extension” of the requirements “instead supported repeal,” the petition said. Additionally, it highlighted the equipment-based solution the order adopted as being procedurally wrong and called the 6-month transition period an arbitrary and capricious conclusion.