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.
" ...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.