CEA PETITIONS D.C. APPEALS COURT TO BLOCK DTV TUNER MANDATES

Filing of CEA petition came as little surprise, but also with little publicity. CEA had vowed to use all legal means possible, including petitioning U.S. Appeals Court, D.C., to block FCC DTV tuner mandate on ground that Commission lacked statutory authority under 40-year-old All-Channel Receiver Act (ACRA) to impose such requirements on receiver makers. CEA petition was filed same day as summary of FCC order was published in Federal Register. Quick action reportedly was taken to get better chance of having case heard in D.C. court, rather than another jurisdiction. In studying possible court petition, CEA had said was required to seek such action with 60 days of Federal Register notice. It was unclear what accounted for unusually long delay in publishing FCC order.

FCC said final rule on DTV tuner mandates would become effective Nov. 12, setting in motion timetable under which set makers would have until July 1, 2004, before 50% of sets with largest screen sizes, 36” and above, must include DTV tuners. Schedule requires that 100% of such sets be so equipped year later, when half of all 25"-36” receivers also must be in compliance. Phase-in period for all sets 13” and above concludes July 1, 2007, same deadline as when DVD recorders, VCRs and other devices with built-in TV reception also must conform. In summary of order, Commission said rules would allow manufacturer to include combination shipments of DTV monitors and set-top tuners in meeting required percentages as long as such combinations were marketed together with single price. Order shed little light on how requirements would be verified or enforced. Commission said new rules “impose no reporting or recordkeeping requirements” on receiver makers, and “the only compliance burden” is DTV tuner mandate itself.

CEA White Paper circulated before Commission’s Aug. decision said FCC stated its belief in 2001 rulemaking on DTV transition (MM 00-39) that it had jurisdictional authority under Sec. 303 of ACRA to impose DTV tuner mandates. But Commission’s conclusion “contravenes the law and should be rejected,” CEA said, and that’s expected to be basis of group’s Appeals Court petition. “Plain-language reading” of ACRA and related provisions of Communications Act “make it clear that ACRA does not apply to DTV transmissions,” CEA said. Present-day TV sets comply with ACRA’s requirement that they receive “all frequencies” in UHF and VHF bands, CEA said: “ACRA does not, however, require that television receivers receive all broadcasts on all frequencies offered by all technologies.” As such, CEA said, ACRA “fails to provide a legal basis for the Commission’s imposition of a requirement on manufacturers.” Moreover, it said, “receivers are not subject to the broad plenary jurisdiction of the Commission in the same way as transmitters and licensees.”

ACRA’s legislative history suggests Congress intended Sec. 303’s tuner mandate provisions “to be very narrow, and to apply only to adding UHF reception capabilities to all television sets,” CEA said. “Digital or other new technologies were not encompassed within its terms,” it said. As originally proposed, ACRA would have authorized FCC to set “minimum performance standards” for all TV receivers, CEA said, but proposal was criticized in Congress for “providing the Commission with too great a role in receiver design.” It said: “This legislative history expresses Congress’s focused and unambiguous intent as to ACRA’s sole purpose -- a purpose that excludes all but UHF reception capability.”