Cable Industry Praises Viewability Rule Sunset as TV Stations Consider Next Steps
The FCC voted unanimously to let expire later this year a rule that has required cable operators to deliver the DTV signals of must-carry stations to its analog cable subscribers. The order approved by a 5-0 vote had been expected (CD May 25 p5), though broadcasters had mobilized in recent weeks to attempt to alter it. The FCC said it finds the viewability rule is “no longer necessary,” but requires hybrid analog-digital cable systems to continue complying with the rule until Dec. 12, 2012. NAB will consult its board before it decides how to respond, it said. “The NAB remains concerned that today’s FCC decision has the potential to impose negative financial consequences on small local TV stations,” a spokesman said. “We will be reviewing our options with our Board of Directors.” A coalition of must-carry station owners that formed to lobby on the issue didn’t immediately respond to our query.
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Cable operators praised the commission for letting the rule sunset while at the same time extending an exemption that lets operators of smaller cable systems with limited capacity out of requirements that they deliver the HD signals of those must-carry stations to subscribers. NCTA President Michael Powell said the order will let cable operators maximize their bandwidth while continuing to make sure the cable customers who have yet to make the transition to digital “make that conversion as smooth as possible.” The American Cable Association praised the extension of the HD carriage exemption. “The exemption will provide smaller systems with the additional time they need to upgrade so they too can eventually provide must carry signals in HD,” said CEO Matthew Polka.
The decision was not easy for Commissioner Ajit Pai, he said (http://xrl.us/bnbkuq). “I take seriously my duty as a Commissioner to implement the laws passed by Congress, and I agree with broadcasters that the Commission’s 2007 interpretation of the viewability statute ... appears more consistent with its structure,” he said. “In particular, I am sympathetic to the broadcasters’ argument that the new interpretation ... obscures the distinction between the provision’s second and third sentences, and do not find the order’s refutation of this point to be particularly persuasive,” he said. But beyond statutory concerns, cable operators raised “powerful” constitutional concerns, he said. “I have serious doubts that continuing to impose the current viewability mandate would be consistent with the First Amendment,” he said.
Commissioner Mignon Clyburn also said she struggled with the decision. “Voting to let this rule sunset requires this agency to once again trust corporate stakeholders to act in the public’s best interest, and to do so in a way that meshes with the spirit of the FCC’s intentions, she said (http://xrl.us/bnbkvc). She said her concerns about that trust were reflected in a provision of the order that could let must-carry stations regain analog carriage. The order says if the commission gets a “significant number of well-founded consumer complaints that an operator is not effectively making affordable set-top boxes available to consumers in lieu of analog carriage of a channel, one of the possible remedies would be to require the operator to resume analog carriage of the channel,” it said (http://xrl.us/bnbkvn). Commissioner Robert McDowell said he trusts that the decision to re-impose analog carriage will not be made lightly and not be used as a “means to reinstate this rule on a case-by-case basis” (http://xrl.us/bnbkvt.”