D.C. Circuit: Cable Programmers Lack Standing in FCC Fight
Cable operators must provide digital and analog versions of the same program despite concerns from critics that the requirement will eat up space and force some operators to dump channels, a federal appeals court ruled today.
The U.S. Court of Appeals for the D.C. Circuit said the programmers who challenged the Federal Communication Commission—among the group were C-SPAN, A&E Networks, and the Weather Channel—lacked standing to petition the appeals court for review. Here's a Legal Times article on the case.
Judges Judith Rogers, David Tatel, and Brett Kavanaugh said the programmers had not shown how they were injured by the FCC rule or how they would likely be harmed after the switch to digital broadcasting next year. The programmers argued the possibility of limited space on cable line-ups infringed free speech rights—the ability to “speak” to consumers.
But the appellate court noted that cable operators were not participants in the FCC challenge. Cable operators have pledged to carry both the digital and analog versions of the same channel for at least three years. Rogers wrote the opinion.
Bruce Sokler, a partner with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, argued for the programmers. By finding a lack of standing, the D.C. Circuit did not examine the First Amendment arguments. “We’re disappointed our First Amendment claims were thwarted by a procedural approach,” says C-SPAN general counsel Bruce Collins.
FCC Deputy General Counsel Joseph Palmore argued for the government. Jack Goodman, a partner at Wilmer Cutler Pickering Hale and Dorr, argued for the intervenors, which included the National Association of Broadcasters.
"This decision represents a big win for broadcasters,” NAB Executive Vice President Dennis Wharton said in a statement. “We’re pleased the court accepted the FCC’s sensible viewability rules and rejected speculative claims by C-SPAN and other cable programmers that any must carry requirements violate their First Amendment rights."