DTV Transition Threat Thwarted

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Washington— A lawsuit that could have derailed both the 2009 analog TV cutoff and a pending $10 billion federal spectrum auction was tossed out of court last week, based on a 115-year-old Supreme Court precedent that tests whether Congress has legally enacted a law.

The case boiled down to this: Did Congress legally pass the Deficit Reduction Act of 2005 (signed by President Bush in February 2006) or was the law invalid because the House and Senate approved slightly different versions?

The stakes were high because the DRA authorized the shut down of analog over-the-air television on Feb. 17, 2009; required the Federal Communications Commission to sell some of the old TV spectrum, in an upcoming auction expected to yield at least $10 billion; freed up critical spectrum for use by police, fire and rescue units that have been plagued by interoperability problems in disaster zones; and created a $1.5 billion program to subsidize consumer access to digital-to-analog converter boxes.

Public Citizen, a nonprofit consumer-advocacy group in Washington, D.C., argued that the omnibus DRA was invalid because the House and Senate failed to pass identical versions as required under Article I, Section 7 of the U.S. Constitution.

According to Public Citizen, the Senate passed a Medicare payment provision with a 13-month duration while the House approved language calling for a 36-month period. The Senate clerk changed the Senate bill to 36 months before transmitting it to the House.

Because Bush signed the law with a 13-month payment period that had not been approved by House, the DRA violated the “bicameral passage” requirement in the constitution that requires the House and Senate to adopt identical language, according to Public Citizen.

In a 24-page ruling released May 29, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit held that the Supreme Court’s 1892 ruling in Marshall Field & Co. v. Clark was controlling and required dismissal of Public Citizen’s suit.

The D.C. Circuit explained that in Marshall Field, the Supreme Court created the “enrolled bill” doctrine, which states that Congress has constitutionally passed a bill if the version presented to the president has been signed by the presiding officers of the House and the Senate.

“Under Marshall Field, a bill signed by the leaders of the House and Senate — an attested 'enrolled bill’ — establishes that Congress passed the text included therein 'according to the forms of the Constitution,’ and it “should be deemed complete and unimpeachable,” the D.C. Circuit said.

The court went on to observe that the enrolled bill doctrine was iron-clad and couldn’t be trumped by authoritative congressional sources.

“Even if 'the Congressional record of proceedings, reports of committees of each house, reports of committees of conference, and other papers printed by authority of Congress,’ the court said, quoting the Marshall Field opinion, “indicate that the House voted to enact a 36-month duration of Medicare payments for certain durable medical equipment while the Senate passed a 13-month figure, the courts are barred from considering this extrinsic evidence.”

Public Citizen attorney Allison Zieve said her group hasn’t decided whether to seek Supreme Court review. It has 90 days to file.

“We are … disappointed that, in this case, the courts have not been willing to stand up for a basic principle of our Constitution: the requirement that both chambers of Congress pass identical versions of a bill before that bill can be signed into law by the president,” she said.

Public Citizen didn’t sue to overturn the communications provisions. It wanted to block a $100 increase, to $350 from $250, in the fee to file civil actions in federal district court.

Statistically, Supreme Court review is always a long shot, meaning the transition to digital TV and its related components probably won’t come unglued as a result of judicial intervention.

“Broadcasters accept that Congress established February 2009 as the date for ending analog television, and we are joined by many coalition partners in the early stages of a major campaign to ensure that no analog TV gets disconnected due to a lack of consumer education,” National Association of Broadcasters executive vice president of media relations Dennis Wharton said.

Public Citizen’s suit wasn’t given much of a chance, but media analysts were tracking it nonetheless in case of a surprise court action.

“The court wisely avoided the temptation to focus on legal arcana and instead simply upheld the clear will of Congress. Letting the auction go forward is a common sense decision with lots of industry and consumer upside,” said Paul Gallant, a media analyst with Stanford Washington Policy Research.