A federal appeals court is considering the fate of a Federal Communications
Commission order allowing public television stations to use some of their
digital spectrum for subscription services and advertising-supported
The U.S. Court of Appeals for the District of Columbia Circuit heard
oral arguments Monday in a lawsuit seeking to overturn a 2001 FCC ruling that
permits public TV stations to air advertisements on pay channels and to lease
excess digital capacity to commercial programmers.
The plaintiffs, including the United Church of Christ and the Alliance for
Community Media, claimed that the FCC order violates a federal ban on
noncommercial educational stations broadcasting advertisements.
"Congress clearly intended to preserve the noncommercial character of
noncommercial television," said Harold Feld, an attorney with the Media Access
Project, the nonprofit law firm representing the plaintiffs.
"By permitting noncommercial educational broadcasters to become dependent on
commercials," he added, "it must inevitably warp their judgment and make them
more responsive to commercial pressures."
The FCC argued that the subscription services some public TV stations are
planning don't fall under the legal definition of "broadcasting" and aren't
subject to the advertising ban.
"If special arrangements or special equipment have to be made to view the
programming, it [is] not broadcasting," Daniel M. Armstrong, the FCC's associate
general counsel, told the appeals court.
Other supporters of the FCC order, including the Association of Public
Television Stations, said the policy will allow cash-strapped stations to
finance the transition to digital technology without compromising their
Analysts said the court has three main options. It could reverse the FCC
order, in which case public TV stations wouldn't be allowed to sell any ads.
The court could rule that some commercial-supported and for-pay services are
allowed, but that the FCC's interpretation is flawed. The agency would then have
to issue a new order.
Or the court could uphold the FCC order.
A decision is expected in the next few months. Either side can appeal to the
States News Service