FCC Defends Viewability Rule Sunset at D.C. Circuit
A brief by the FCC filed last week with the U.S. Court of Appeals for the D.C. Circuit defended the agency’s decision to largely let its so-called viewability rule expire earlier this year. The rule was enacted to help must-carry TV stations retain viewers through the DTV transition, a technology change that broadcasters completed before the entire cable industry had; it required hybrid digital and analog cable systems to deliver must-carry stations to viewers in both formats. But times and technology have changed in the years since the FCC adopted the requirements in 2007, the brief said. Agape Church, the NAB and others appealed the FCC’s decision to let the rule expire and the court denied their request to stay the sunset (CD Sept 25 p18).
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Higher digital cable penetration, the availability of low-cost analog-digital converter boxes for cable subscribers and other factors combined to make it reasonable for the commission to let the rule expire, the brief said. “By the end of 2012, a predicted 8 percent of television viewers -- one fifth of the 2007 figure, will be analog-only cable subscribers,” it said. “That percentage is expected to continue to fall as more systems convert to all digital and more people buy new television sets,” it said.
Extending the rule would have been constitutionally problematic, the brief said. “In light of the fact that a single analog channel takes up the same bandwidth as 12 digital channels, the Commission reasonably concluded that the burden of mandatory analog carriage is not constitutionally justified given the diminishing threat to must-carry stations and the widespread availability of inexpensive signal conversion equipment."
And parties had plenty of warning that the requirement would expire, the brief said. In the 2007 order that established the rule, the commission “set the viewability rules to expire in three years” after the analog broadcast TV cutoff, the brief said. “The expiration of the rule was announced three years in advance and subject to an additional round of comment,” it said. “The Commission took the very action it had indicated.” Furthermore, the D.C. Circuit has held that agencies are not required to spell out every “precise proposal” it may adopt as a rule, the brief said.