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 programming.
The U.S. Court of Appeals for the District of Columbia Circuit heard oral arguments last week in a suit that seeks to overturn a 2001 FCC ruling permitting public TV stations to air advertisements on pay channels, as well as to lease excess digital capacity to commercial programmers.
Plaintiffs, including the United Church of Christ and the Alliance for Community Media, claimed the FCC order violates a federal advertising ban on noncommercial, educational stations.
"Congress clearly intended to preserve the noncommercial character of noncommercial television," argued Harold Feld, attorney for the Media Access Project, a nonprofit law firm representing the plaintiffs.
"By permitting noncommercial educational broadcasters to become dependent on commercials, it must inevitably warp their judgment and make them more responsive to commercial pressures," he said.
The FCC contends the subscription services some public TV stations are planning don't fall under the legal definition of "broadcasting," and thus aren't subject to the ban.
"If special arrangements or special equipment have to be made to view the programming, it [is] not broadcasting," FCC associate general counsel Daniel M. Armstrong told the appeals court.
Other supporters of the agency's order, including the Association of Public Television Stations, said the policy will allow cash-strapped stations to finance the transition to digital without compromising their noncommercial nature.
Analysts say 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.
Or, 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. The court could also uphold the order.
States News Service