In August, the FCC denied NAB's request for a stay of the viewability/dual carriage decision. NAB argues that e millions of viewers would lose access to broadcast stations "providing foreign language, religious and other niche broadcast programming that have historically opted for 'must-carry' on cable systems."
NAB then asked the U.S. Court of Appeals for the D.C. Circuit to review that decision. NAB says that decision was arbitrary, capricious and does not square with congressional intent--in the 1992 Cable Act--that must-carry signals have to be viewable without added equipment, "not merely available in theory."
"By depriving must-carry stations of equal access to the same audience as other stations and non-broadcast channels, the FCC reads [the Cable Act] in a manner that permits cable operators to create the very disparate treatment that Congress sought to prevent, thereby turning the statute on its head," NAB said in its brief.
While cable operators will be required to make low-cost converters available to analog customers so they can see the digital signals, the concern is those viewers might not go to the trouble for a few stations out of the scores or hundreds in their cable lineups.
NAB also argues that interested parties in the proceeding were not given notice of that equipment-based alternative, so the FCC violated the Administrative Procedures Act. "[I]t is black-letter law that the FCC “must itself provide notice of a regulatory proposal," NAB said.
Cable operators have been trying to get out from under the viewability mandate for years, arguing that the dual carriage requirement is consumer unfriendly, unwieldy, no longer justifiable in a fiercely competitive marketplace, and unconstitutional.
The court has not yet scheduled oral argument in the case.