D.C. Circuit Rejects Challenge to Sunsetting of Viewability Rule [telecom]

By Harry Cole, CoomLawBlog,. December 27, 2013

| The D.C. Circuit has given the FCC and the cable industry a | belated Christmas present. It has rejected a challenge mounted | by a number of broadcasters (including the NAB) to the FCC's | 2012 revision of its "viewability" rule. And one member of | the three-judge panel went considerably further, suggesting | that the entire cable must-carry regime is on extremely shaky | constitutional footing. | | The viewability rule, adopted in 2007, applied to "hybrid" | cable companies. ("Hybrid" cable operators are those that | opted, after the 2009 DTV transition, to provide an analog | tier of programming consisting of local TV signals and, in | some cases some cable channels so that subscribers with | analog receivers would not require additional equipment.) The | rule provided that such operators could either (1) provide the | digital signal of all must-carry stations in analog format (in | addition to any digital version carried) to all analog cable | subscribers, or (2) transition to an all-digital system and | carry the signal in digital format only, provided that all | subscribers have the necessary equipment to view the broadcast | content.

Continued:

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" ...suggesting that the entire cable must-carry regime is on extremely shaky constitutional footing." I wonder if "must-carry regime" also includes retrans consent. That would be a real Christmas gift to the cable TV industry!

This decision isn't final of course. Broadcasters will surely appeal the District Court's decision and the case may end up at the Supreme Court.

Neal McLain

Reply to
Neal McLain
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I doubt it. Retrans consent has a very different legal footing. If the current must-carry regime were nullified (by either Congress or the Courts), then retrans consent would continue unimpeded, unless Congress chose to eliminate it (thereby creating a new carve-out from copyright law, whereas the copyright industry has been very successful in pushing Congress in the opposite direction, making copyright law more and more draconian at every turn).

It was not a district court decision; the decision came from the United States Court of Appeals for the D.C. Circuit. The losers can petition for an "en banc" rehearing (by the entire D.C. Circuit), or they can petition the Supreme Court to hear their appeal. If they get an "en banc", the losing party at that stage can then petition SCOTUS.

-GAWollman

Reply to
Garrett Wollman

Garrett Wollman responded:

I agree that "retrans consent has a very different legal footing" vis-a-vis must-carry in the sense that each was created by a different section of the

1992 Cable Act. Both rights were created by that act; neither was created by copyright law.

Of course Congress could eliminate either right without disturbing the other, or a court could strike down either right without disturbing the other. But any such action would affect only the Cable Act, not the Copyright Act.

Eliminating must-carry without eliminating retrans consent (or vice versa) would constitute a change to the 1992 Cable Act, but it would not change the Copyright Act.

Well, yes. But "making copyright law more and more draconian" doesn't change the 1992 Cable Act. Of course Congress could change both laws as part of the same Act (and I'm sure copyright lawyers would push it to do so), but changing copyright law by itself does not change communications law.

I continued:

Garrett responded:

You are correct. My error.

Neal McLain

Reply to
Neal McLain

How is cable retransmission not an exercise of the copyright owner's exclusive right of (digital) public performance?

-GAWollman

Reply to
Garrett Wollman

Garrett Wollman asked:

I didn't say it isn't. I said that the applicable law governing must-carry and retransmission-consent is *communications* law, not copyright law. That law (the Cable Television Consumer Protection and Competition Act of 1992) regulates the conditions under which a cable operator may (or must) carry the *signal* of a broadcast station. It makes a few references to copyright law, but only to the extent that copyright law affects signal-carriage requirements.

If a station licensee elects retransmission-consent, it may impose certain conditions on the cable operator, including payment of fees. One could argue that at least a portion of these fees reimburses the station for the copyright liabilities that it incurs for the programming it carries (and I'm sure the station would make that claim).

If a station licensee's copyright liability increases as a result of changes, draconian or otherwise, in copyright law (or for any other reason), it can increase its retrans-consent fees to compensate. Such an increase would constitute an "exercise of the copyright owner's exclusive right of (digital) [or analog] public performance."

Of course any increase in copyright liability would be a dandy excuse for the station to tack even more goodies onto the retrans-consent agreement. Take or leave it, cable guys!

In any case, whatever the station does with retransmission consent, it is acting under rights granted to it by the Cable Act, not by the Copyright Act.

None of the above affects the cable operator's own copyright liability. The Copyright Act of 1976 imposes direct copyright liability on cable operators. Under that act, every cable operator must submit copyright royalty payments to the Copyright Office for all broadcast programming it carries. I explained this in some detail in a 2002 T-D post at:

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One change since 2002 however: the CARPs have been abolished, and its functions are now assigned to the Copyright Royalty Board, a unit of the Copyright Office.

Neal McLain

Reply to
Neal McLain

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