FCC Order Permits Sunset of the “Viewability Rule,” Allowing Hybrid Cable Operators More Flexibility in Providing Analog Customers Access to Must-Carry Station Signals

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The FCC has released an Order announcing the sunset of the Commission’s current “viewability” rule, which required cable systems offering both analog and digital cable service (“hybrid systems”) to carry must-carry broadcast stations in both digital and analog format to all subscribers. The viewability rule was set to expire on June 12, 2012, three years after the date of the DTV transition. In the Order, the Commission concurrently instituted a six-month transition period, until December 12, 2012, during which hybrid systems will continue to deliver dual analog and digital feeds of must-carry TV station signals. Separately, the Order extended until 2015 the exemption for eligible small operators with financial or channel capacity constraints from the statutory requirement that must-carry high definition (“HD”) broadcast signals be furnished to viewers in HD (“HD carriage exemption”).

Reversing its 2007 interpretation of what is required to satisfy the statutory viewability mandate, the Commission reasoned that marketplace and technological changes over the last half-decade now provide alternative, less restrictive means by which must-carry television signals can be made viewable to analog customers who are served by hybrid systems. The Commission also was persuaded by cable operator arguments that elimination of the viewability rule would free up additional capacity to meet accelerating consumer demands for HD cable services and high-speed broadband services. In a statement supporting the Commission’s decision, Commissioner Ajit Pai observed that “[c]able operators present a powerful argument that renewing the viewability mandate on the state of the current record would run afoul of the First Amendment.”

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