Low-Power TV Never Advocated Dual-Tuner Boxes in 2006 Filings
The Community Broadcasters Association did speak out about “the analog problem” more than 18 months ago, but CBA’s 2006 filings never urged NTIA to require dual analog and digital tuners in coupon-eligible converter boxes, our review found. Still, CBA on Friday defended its filings and again denied dragging its feet on the converter box issue.
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CBA addressed the issue in Sept. 25, 2006, comments in NTIA’s coupon program rulemaking, CBA said last week in a rejoinder to CE makers (CED March 28 p4). The concern is the basis of its complaint at the U.S. Court of Appeals for the District of Columbia Circuit that converter boxes lacking dual tuners violate the All-Channel Receiver Act and should be declared illegal. In an Aug. 24, 2006, ex parte the group first urged NTIA to make analog passthrough a required feature in coupon-eligible boxes. NTIA ultimately decided to permit, not require, analog passthrough in coupon-eligible boxes. And CBA now views analog passthrough boxes it urged NTIA to mandate with the same scorn as it views boxes without the passthrough feature, the complaint showed.
“Plainly, the set-top converter boxes which do not include both digital and analog tuners fall short of the statutory requirement, since those boxes are incapable of displaying the signals broadcast by all stations operating on all television frequencies,” CBA’s complaint said. “That ‘passthrough’ 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 ‘non-passthrough’ boxes are equally incapable, and have the added disqualifying feature of requiring considerably more effort on the part of the viewer seeking to watch programming transmitted in analog.”
The complaint asked the court to compel the FCC to stop the marketing and distribution of boxes that aren’t ACRA- compliant. “The need for action is exceptionally urgent, since noncompliant devices are being sold today and are being subsidized by a federal program that stimulates immediate purchasing because subsidy coupons expire only 90 days after being mailed by the government,” CBA said. The complaint erroneously says consumers have until March 31, 2008, to apply for coupons. Actually, March 31 next year is the deadline.
Though CBA’s filings at the NTIA didn’t advocate boxes with dual tuners, they also never said that CBA thought that analog passthrough was sufficient for assuring “the continued reception of analog signals” after Feb. 17, 2009, Peter Tannenwald, CBA’s outside counsel, told us in an e-mail Friday. “The key issue was the importance of not blocking analog signals,” Tannenwald said. “We thought that the need for analog reception was obvious, as a matter of both law and practicality, so we didn’t argue at length about it, and we were flabbergasted when NTIA issued rules permitting DTV-only boxes that block analog signals.”
CBA also assumed most CE makers would include analog passthrough, “if not tuners, in their boxes to enhance their marketability,” Tannenwald said. “Moreover, we assumed that passthrough would be just that -- passthrough all the time with no interference -- rather than the way it turned out, where you have to turn a box off and use a separate remote control to view analog signals.”
CBA was amazed when it learned so few coupon-eligible boxes would have analog passthrough, Tannenwald said. Directed by CBA’s board to “figure out what our remedies were,” Tannenwald found that “applicable law and FCC precedent dictated that an analog tuner be included, not just passthrough when the box is turned off, for the boxes to ‘adequately receive’ all channels,” he said. “CBA thus took the position before the FCC and the Court of Appeals that analog tuners are required. If all the boxes had been designed in the first place with analog passthrough, even completely passive, there is a good chance that CBA would not have become so alarmed and would not have directed me to research remedies, and that would have been the end of it. Now that we have done all the research, however, we are insisting on compliance with what the law -- as consistently interpreted by the FCC -- requires.”
On accusations by CEA and others that CBA was “sitting on its hands because it did not file a full legal brief in its comments to NTIA in 2006,” Tannenwald said there’s “absolutely no basis for excusing a violation based on when CBA figured out the full scope of the problem and raised it explicitly with the government.”