Low-Power TV Sues FCC to Get Analog Tuners in All DTV Boxes

The Community Broadcasters Association asked the U.S. Appeals Court for the District of Columbia to issue a writ of mandamus requiring the commission to require analog and digital tuners on all boxes. CBA had promised to sue if the agency didn’t act quickly on its Dec. 6 petition for a declaratory ruling that coupon-eligible boxes that don’t pass on analog signals violate the All-Channel Receiver Act and sections 15.115(c) and 15.117(b) of commission rules (CED Feb 14 p1).

The FCC is “ignoring its clear statutory duty to insure that television receiving devices marketed in the U.S. permit the reception and display of all over-the-air broadcast signals,” said CBA’s filing. “The Commission’s failure in that regard threatens the survival of many, if not most, CBA members, to say nothing of depriving the public of access to thousands of TV stations.” CBA claimed the agency “tolerated” sale of non-compliant devices and their promotion by the NTIA, which is issuing $40 coupons for converters. The court should force the FCC to act on CBA’s request because the delay “has been unreasonable in the context of the emergency circumstances,” said the group. An FCC spokeswoman declined to comment.

Flouting the Act, the FCC didn’t require consumer electronics makers to build and sell only boxes that receive both analog and digital signals, said CBA. “There is a serious problem,” it said. “What is worse, the set-top converter boxes certified as eligible for and being promoted through the NTIA coupon program -- which represent the substantial majority of converter boxes on the marketplace -- are precisely those deficient boxes designed to receive only DTV signals and not analog signals.” CBA cited NTIA data showing that people have ordered more than 8 million coupons. “Nearly 90 percent of the boxes certified to date block the reception of analog signals altogether,” said CBA.

Of the roughly 60 boxes certified by NTIA as coupon- eligible, six are passthrough models, according to the agency Web site. NTIA Acting Administrator Meredith Baker has said she expects the agency to approve more passthrough converters. “There may be more converter boxes and passthrough boxes that will be certified,” said a spokesman. Congress told the agency to “create standards for digital-to- analog converter boxes, to encourage retailers to distribute them and to distribute coupons,” he said. “NTIA is working with the low-power television community and we are educating consumers as to their choices of converter boxes.”

Converter boxes are deemed TV receivers under the Act, said CBA. “As the Commission itself has made clear, such devices must be capable of adequately and usefully displaying all analog and digital signals.” All 1,759 full-power TV stations will stop analog broadcasts Feb. 17, but the 7,122 Class A, low-power TV or translator stations have no transition deadline, said CBA. “Plainly, the set-top converter boxes which do not include both digital and analog tuners fall short of the statutory requirement” under the Act of “displaying the signals broadcast by all stations operating on all frequencies,” it said. “That ‘pass through’ boxes by definition are incapable of doing so is clear from the fact that, in order for a viewer with such a box to receive analog programming, the box must be turned off.”

The lawsuit is “irresponsible,” a CEA spokesman said. CBA would have consumers pay more money for boxes with analog and digital tuners “as cover for its refusal to shift to DTV,” he added. “CBA should act in the national interest and either shift to digital or promote the several converter box models with analog passthrough that already provide the solution CBA seeks. Instead, CBA would block the DTV transition, threaten $20 billion in analog auction revenue, waste billions already spent and force consumers to spend much more to buy converter boxes.” NAB declined to comment.

The CE Retailers Coalition “trusts that for the benefit of the DTV transition and all the beneficial work that has gone into it, this petition will be dismissed out of hand,” Bob Schwartz, the group’s general counsel, said of the CBA suit. CBA, like CERC, testified Oct. 31 at a House Telecom Subcommittee hearing on the transition, Schwartz said. “There was not one word in the CBA written or oral testimony on the subject of the makeup of coupon-eligible converter boxes, or any suggestion that they were deficient,” he said. At the hearing, CBA’s witness “listened as assurances were sought, and given, that CERC members would carry these converter boxes in all their stores,” he said. “No question was asked about whether analog tuners, or the analog passthrough feature, should be included in the boxes.”

When CBA appeared Feb. 13 before the same subcommittee, “the CBA witness labeled analog passthrough boxes -- the only boxes that CBA now wants the court to direct to be the only ones that may be sold -- as ‘consumer-hostile,'” Schwartz said. “CBA has also irresponsibly told consumers that the entire U.S. government has perpetuated a ’scam’ in allowing these products to be marketed and in issuing coupons for them. Even now CBA ignores, in its petition, the utility of simple ’signal splitters’ in most cases, despite having been informed on this subject several times by various DTV Transition Coalition members. CBA should have decided long ago, before it went to court to seek such an extraordinary remedy, and to reverse years of congressional, agency, and private sector work and investment, what it believed to be good and to be ‘consumer-hostile.’ Its recent changes of opinion should not be imposed as court mandates.”

CBA has been stymied in efforts to legislate that pay-TV providers carry some low-power stations’ signals. The office of House Commerce Committee Chairman John Dingell, D-Mich., “advised us that passage of such legislation during an election year is a political challenge that cannot likely be surmounted,” said CBA lawyer Peter Tannenwald. The group has not been able to get the FCC to approve a notice proposing a 2012 analog cutoff deadline and to help Class A stations demand carriage on cable systems. “As far as I know, there is no support except by Chairman Martin, and I have not made any headway with any of the commissioners,” said Tannenwald. “I have no idea if that will ever come to the surface again.” In meetings this month with commissioners, “they indicated they could not vote for the proposal at this time and they did not give us any other information,” he added.

Commissioners still have concerns about Martin’s draft notice, said FCC and industry officials. Commissioners are proposing changes to the draft, but Martin hasn’t responded to them, said an FCC official. Last-minute changes led to the rewording of a March 5 notice on broadcast diversity to seek comment on whether the commission has congressional authority to mandate must-carry rights for Class A stations, said sources. But that notice hasn’t replaced the one on low-power, said the FCC official. Martin hasn’t called a vote on the low-power notice. “Commissioners are still debating and trying to go back and forth on what they think is the right thing to do,” Martin told reporters last week.