In November, 2007, the Commission imposed a “viewability” requirement on cable operators in anticipation of the DTV Transition. That requirement – which was viewed by some as imposing a kind of dual-carriage obligation on cable systems – provided that cable operators will (until February, 2012) have to either: (a) continue to provide an analog tier, but down-convert the digital signal of must-carry stations into analog format; or (b) transmit the signal of must-carry stations in digital format only (for systems which are digital-only) while ensuring that all subscribers, including those with analog TV receivers, have the necessary equipment to view the broadcast content. We described the “viewability” rules in the February, 2008 Memo to Clients (and we described a later-adopted small-system exemption in the September, 2008 Memo to Clients).

In a terse decision issued on Halloween, the U.S. Court of Appeals for the D.C. Circuit rejected a challenge to the “viewability” rules which had been brought by a number of cable programmers.  The Court’s decision did not address the merits of the various arguments the programmers had advanced because, in the Court’s view, the programmers had failed to satisfy the threshold requirement of demonstrating how the programmers would be harmed by the new rules.

Under well-established rules and precedent governing appeals taken to federal courts, a party seeking to challenge an agency’s ruling must demonstrate that that party would, in fact, be harmed by the ruling being challenged. (This is known generally as having to demonstrate that you have “standing” to bring the appeal.) 

In this particular case, cable operators who would be subject to the new rules would presumably have had a pretty easy time establishing their “standing”, since they would be the ones bearing the brunt of the rules. But cable operators did not appeal. Au contraire, they announced (through the NCTA) that they planned to comply with the new rules whether or not those rules got tossed.  

Instead, it was cable programmers who appealed. Since any harm that they might suffer would be, at best, secondary and indirect, they had an uphill struggle on the standing front. (Their argument was that the viewability rules would force cable operators to reserve more bandwidth for carriage of over-the-air stations than would normally be required, thus creating a shortage of cable bandwidth which would, in turn, increase “competitive pressure” on cable programmers.)  In the Court’s view, they came up short.  As a result, the Court slammed the door on the programmers without consideration of their substantive arguments, leaving the viewability rules undisturbed.