FCC: Cable Nets Can't Fight Dual Carriage Rule


Washington—The six cable networks that have mounted a judicial challenge to a new federal rule on the carriage of some digital TV stations have no legal standing to attack the rule in federal court, according to the Federal Communications Commission.

The FCC said the cable networks shouldn't be allowed to pursue their court claims because the DTV carriage rule applied just to cable operators and has a built-in incentive that would actually benefit cable networks looking for distribution from capacity-constrained cable systems.

“Only cable systems are regulated by the order; [cable networks] are not,” the FCC said in a court brief filed June 6.

In February, C-SPAN, Discovery Communications, The Weather Channel, TV ONE, A&E Television Networks, and Scripps Networks sued to block an FCC rule that requires the vast majority of cable systems to provide consumers with analog and digital versions of local TV stations that demand carriage, starting on Feb. 18, 2009. All-digital cable systems are exempt from the rule, which sunsets in 2012.

The case is before the U.S. Court of Appeals for the D.C. Circuit.

In its brief, the FCC argued that the cable networks lack standing in part because major cable operators have said they would comply with the rule voluntarily even if the programmers won their case prior to the three-year sunset. The FCC's authority for the voluntary commitment was first reported in a Feb. 5, 2008 article published by Multichannel News that quoted National Cable & Telecommunications Association president Kyle McSlarrow.

“Given the cable operators' vow, there's no injury traceable to the FCC's decision or redressable by the Court," the FCC said.

The FCC also suggested that its rule gave cable operators an incentive to transition quickly to all-digital transmission, which would free up retired analog channel space for cable networks seeking new avenues of distribution.

“Indeed, numerous cable systems already have pledged to convert to all-digital operations by Feb. 17 2009,” the FCC said. “At least one cable system has informed the [FCC] that its decision to convert to all-digital was motivated in part by the [dual carriage] rule.”

The FCC did not directly tell the court that many of the 120 cable operators that promised to go all-digital did so in order to obtain FCC waivers from the agency's set-top box integration ban.

The cable networks argued before the FCC that cable operators should be required to distribute must carry TV signals only once—in digital, leaving it up to consumers whether to acquire DTV sets or set-tops boxes to view the signals.