Legal Challenge to Viewability Rule Fails

The DC Circuit has denied a legal challenge to the FCC’s 2012 action changing how it interpreted a requirement in the Communications Act to ensure that television channels carried by cable operators be “viewable” to subscribers.

Originally adopted in 2007 to ensure that stations converting to digital-only would still be viewable by analog cable providers, the “viewability rule” required cable operators with analog subscribers to down-convert the digital TV channels to analog so those subscribers would not lose the TV channel.  That policy was slated to sunset in 2012, and in connection with reviewing the policy, the FCC decided to interpret the “viewability rule” more liberally by concluding that so long as analog subscribers received a notice on their bill that they could continue to receive TV channels by paying for an equipment change, the “viewability” requirement was met.  Broadcasters challenged the legality of that new interpretation, but the new rule went into effect anyway.  Many stations lost viewers as a result, even after alerting cable viewers that action was necessary to avoid loss of the signal.

The court upheld the FCC’s action, finding that because Congress had not expressly mandated the retention of the prior policy, the FCC’s action was not arbitrary or capricious.