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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 15, 2008 Decided October 31, 2008

No. 08-1045

C-SPAN, ET AL.,

PETITIONERS

v.

FEDERAL COMMUNICATIONS COMMISSION

 AND UNITED STATES OF AMERICA,

RESPONDENTS

ASSOCIATION FOR MAXIMUM SERVICE TELEVISION, INC.

 AND NATIONAL ASSOCIATION OF BROADCASTERS,

INTERVENORS

On Petition for Review of an Order 

of the Federal Communications Commission

Bruce D. Sokler argued the cause for petitioners. With him

on the briefs was Robert G. Kidwell.

Burt A. Braverman was on the brief for amici curiae Africa

Channel, et al. in support of petitioner.
2

Joseph R. Palmore, Deputy General Counsel, Federal

Communications Commission, argued the cause for respondents.

With him on the brief were Thomas O. Barnett, Assistant

Attorney General, U.S. Department of Justice, Catherine G.

O'Sullivan and Nancy C. Garrison, Attorneys, Matthew B.

Berry, General Counsel, Federal Communications Commission,

Daniel M. Armstrong, Associate General Counsel, and Joel

Marcus, Counsel. C. Grey Pash Jr., Counsel, entered an

appearance.

Jack N. Goodman argued the cause for intervenors

Association for Maximum Service Television, Inc., et al. in

support of respondent. With him on the brief were John A.

Rogovin, Jane E. Mago, Jerianne Timmerman, and David L.

Donovan. Dileep S. Srihari entered an appearance.

Before: ROGERS, TATEL and KAVANAUGH, Circuit Judges.

Opinion for the Court by Circuit Judge ROGERS. 

ROGERS, Circuit Judge: In connection with the

congressionally mandated switch from analog to digital

broadcast television transmission on February 19, 2009, the

Federal Communications Commission promulgated regulations

requiring cable systems with analog-only subscribers either to

transmit, for three years after the date of transition, both analog

and digital signals of must-carry broadcast channels, or to switch

to an all-digital system. Carriage of Digital Television

Broadcast Signals, Third Report and Order, 22 F.C.C.R. 21064

(2007) (“Viewability Order”). Various cable programmers

challenge the regulations on statutory and constitutional

grounds. Because petitioners have not met their heavy burden

as non-regulated parties to show that they have Article III

standing, we must dismiss the petition.
3

I.

Under the Communications Act, cable operators with

twelve or more channels are required to devote up to one third

of their “usable activated channels” to “the signals of local

commercial [broadcast] television stations.” 47 U.S.C. §

534(b)(1)(B). The Act further provides that: 

Signals carried in fulfillment of the requirements of

this section shall be provided to every subscriber of a

cable system. Such signals shall be viewable via cable

on all television receivers of a subscriber which are

connected to a cable system by a cable operator or for

which a cable operator provides a connection. If a

cable operator authorizes subscribers to install

additional receiver connections, but does not provide

the subscriber with such connections, or with the

equipment and materials for such connections, the

operator shall . . . offer to sell or lease . . . a converter

box to such subscribers at [regulated] rates.

 

Id. § 534(b)(7) (emphasis added). With regard to noncommercial broadcast stations, the Act mandates that “each

cable operator of a cable system shall carry the signals of

qualified noncommercial educational television stations,” id. §

535(a), and that such signals “shall be available to every

subscriber as part of the . . . lowest priced service tier that

includes the retransmission of local commercial television

broadcast signals,” id. § 535(h). The commercial and noncommercial transmissions that cable systems are required to

transmit are “must-carry” broadcast signals. The

constitutionality of the Act was upheld in Turner Broadcasting

System, Inc. v. FCC, 520 U.S. 180 (1997) (“Turner II”), and is

not at issue here. 
4

1

 See Deficit Reduction Act of 2005, Title III, Pub. L. No.

109-171, 120 Stat. 4, 21 (2006) (codified at 47 U.S.C. § 309 (2006)).

2

 The Commission divides digital displays into two groups

based on resolution quality and aspect ratio: HD and StandardDefinition (“SD”). 

Under the Digital Television Transition and Public Safety

Act of 2005,1 full power television stations, a category that

includes certain local commercial and noncommercial stations,

are required to switch their broadcast transmissions from analog

to digital format by February 18, 2009. The requirement that

broadcast television stations switch to all-digital signals does

not, however, extend to cable systems. These are generally free

to choose their own mix of analog and digital technology.

However, pursuant to 47 U.S.C. §§ 534(b)(4)(A), 535(g)(2),

which prohibit “material degradation” of the signals of mustcarry stations, the Commission has required cable operators to

transmit in high-definition (“HD”)2

 any signals delivered to

them in HD by must-carry stations. Carriage of Digital

Television Broadcast Signals, First Report and Order, 16

F.C.C.R. 2598, 2629-31 (2001). As millions of cable customers

lack the equipment required to view digital cable transmissions,

these analog cable consumers would be unable to view local

broadcast stations transmitted in digital format only. 

On May 4, 2007, responding to the prospect that some local

broadcast stations might not be available to analog cable

subscribers, the Commission issued a Notice of Proposed

Rulemaking (“NPRM”) “seek[ing] comment on the posttransition obligations of cable operators.” Carriage of Digital

Television Broadcast Signals, NPRM, 22 F.C.C.R. 8803, 8803.

After receiving comments, the Commission, on November 30,

2007, issued the Viewability Order in which the Commission

adopted rules establishing a “viewability mandate,” requiring
5

3

 Carriage of Digital Television Broadcast Signals, First

Report and Order and Further Notice of Proposed Rulemaking, 16

F.C.C.R. 2598 ¶ 73 (2001). See also Carriage of Digital Television

Broadcast Signals, Fourth Report and Order, FCC 08-193, 2008 WL

4092895 (Sept. 4, 2008), discussed infra. 

that “to the extent that [cable] subscribers do not have the

capability of viewing digital signals, cable systems must carry

the signals of commercial and non-commercial must-carry

stations in analog format to those subscribers, after

downconverting the signals from their original digital format.”

Viewability Order, 22 F.C.C.R. at 21071. Under separate

regulations promulgated in 2001 regarding material degradation,

47 U.S.C. §§ 534(b)(4)(A), 535(g)(2), where a must-carry

broadcaster delivers its signal to a cable operator in HD digital

format (as opposed to SD), the cable operator is required to

transmit the must-carry station in HD.3 Thus, the combined

effect of the material degradation regulations and the Viewability

Order is that cable systems with analog and digital subscribers

(“hybrid systems”) are effectively required to allocate two

channels to each must-carry HD broadcaster. Alternatively,

cable systems are permitted to become all-digital, with all

subscribers able to view digital signals; under this option, only

digital must-carry signals need be broadcast. The Commission

specified that “any downconversion costs will be borne by the

[cable] operator,” 22 F.C.C.R. at 21072, and further provided

that the viewability mandate would apply for an initial threeyear period following the February 2009 digital transition date.

The Commission, as relevant, found that “any incremental

increase of bandwidth devoted to must-carry stations [would] be

negligible,” 22 F.C.C.R. at 21076 (internal quotations omitted),

and that any concerns of individual cable channels about being

crowded out of cable systems were outweighed by

Congressional concern for broadcast channels. It further noted
6

that insofar as its requirements spurred a move to all-digital

cable systems, total channel capacity might actually be

increased. In concluding that the viewability provisions

survived intermediate First Amendment scrutiny, the

Commission noted that the all-digital option for cable systems

was “significantly less burdensome than the analog must-carry

mandate upheld by the Supreme Court in [Turner II] because

digital signals occupy much less bandwidth on a cable system

than do analog signals.” Id. at 21085. Finally, the Commission

underscored that its viewability provisions were “in line with the

approach already voluntarily planned by many cable operators.”

Id. at 21071. 

II.

The cable operators themselves have not challenged the

Viewability Order. Instead, petitioners are cable programmers

who fear that access to cable operators’ systems will become

more difficult because of the viewability mandate. They

contend that the requirements of the Viewability Order are

contrary to the plain meaning of the Communications Act, are

arbitrary and capricious, and violate their First Amendment

rights. While the court would consider the familiar standard set

out in Chevron U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837 (1984),

in reviewing an agency’s interpretation of a statute that it is

required to implement, and review de novo a challenge to the

constitutionality of the regulations, Jifry v. FAA, 370 F.3d 1174,

1182 (D.C. Cir. 2004), the Commission has raised a threshold

challenge to petitioners’ standing under Article III of the

Constitution. 

Article III standing is reviewed under the standard

established by Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992), and contains three elements. In order to establish

standing, a party must have suffered an injury-in-fact, by
7

showing “an invasion of a legally protected interest which is (a)

concrete and particularized and (b) actual or imminent, not

conjectural or hypothetical.” Id. at 560 (internal quotations and

citations omitted). In addition, “the injury has to be fairly

traceable to the challenged action of the defendant, and not the

result of the independent action of some third party not before

the court.” Id. (internal quotations and alterations omitted). 

Finally, it “must be likely, as opposed to merely speculative, that

the injury will be redressed by a favorable decision.” Id. at 561

(internal quotations omitted). “[W]hen the [petitioner] is not

[itself] the object of the government action or inaction

[petitioner] challenges, standing is not precluded, but it is

ordinarily substantially more difficult to establish.” Id. at 562

(internal quotations omitted). In this latter situation “it becomes

the burden of the [petitioner] to adduce facts showing that . . .

choices [by parties directly affected by a regulation] have been

or will be made in such manner as to produce causation and

permit redressability of injury.” Id. 

Petitioners’ theory of standing is that by requiring increases

in the percentage of bandwidth devoted by hybrid cable systems

to must-carry channels, the Viewability Order ensures that

hybrid cable systems will have less bandwidth to devote to other

uses, including cable programming. This increases the

competitive pressure faced by cable programmers as they

attempt to sell their wares to cable systems, which have less

bandwidth to fill and can thus afford to drive harder bargains

with potential suppliers. In addition to immediate economic

injuries, they offer that the Viewability Order interferes with

their speech by removing further channel capacity from market

competition. While numerous factors affect cable systems’

decisions about bandwidth allocation, available space is an

absolute constraint. In the face of this limitation, purveyors of

cable content will face greater competitive pressures, and even

if the amount of content they provide does not change, the terms
8

4

 Quincy Cable also suggested that “a plaintiff who has been

entirely deprived of any opportunity to compete has standing to

challenge the constitutionality of that deprivation.” 768 F.2d at 1445

on which they provide the content have the concrete possibility

of becoming worse. By definition, ending the directed

allocation of a portion of cable systems’ bandwidth will alleviate

this competitive impediment. While the cable industry itself

may well have made promises concerning carriage of broadcast

channels, petitioners contend, in effect, that removing

government compulsion from the equation opens up the

possibility that a particularly compelling cable content offering

for the “last slice of bandwidth” could convince individual cable

systems to abandon dual carriage of at least some broadcast

networks. 

Petitioners rely on two court cases in support of their theory

of standing. In Turner Broadcasting System, Inc. v. FCC, 512

U.S. 622, 637 (1994) (“Turner I”), the Supreme Court, in

discussing mandatory carriage requirements generally, held that

these requirements regulate cable speech by “render[ing] it more

difficult for cable programmers to compete for carriage on the

limited channels remaining” after implementation of must-carry

requirements. See also id. at 645. In Quincy Cable TV, Inc. v.

FCC (“Quincy Cable”), 768 F.2d 1434, 1445 n.24 (D.C. Cir.

1985), this court expressly held that cable programmers had

standing to challenge the Commission’s must-carry rules.

However neither Turner I nor Quincy Cable stand for the

proposition that cable programmers will always have standing

to challenge must-carry rules, as petitioners appear to suggest.

In Quincy Cable, the primary basis for this court’s conclusion of

standing was a statement by cable systems that the must-carry

rules at issue would preclude carriage of at least one cable

programming petitioner that otherwise would have been

carried.4

 768 F.2d at 1445 n.24. The opposite type of
9

n.24 (citing Regents of Univ. of. California v. Bakke, 438 U.S. 265,

280-82 n.14 (1978)). Petitioners do not allege that they have been

“entirely deprived” of “any” opportunity to compete, only that it is

“more difficult” for them to compete. Pet’rs’ Reply Br. at 4-5 (citing

Turner I, 512 U.S. at 636-37 and Turner II, 520 U.S. at 214).

5

 See Ted Hearn, NCTA Keeping Three-Year Dual Carriage

Vow: Operators Will Keep Promise Even if Court Challenge to FCC

Succeeds, MULTI-CHANNEL NEWS, Feb. 5, 2008 (Resps.’ Br. Appx.);

statement of Kyle McSlarrow, NCTA President and CEO, The Status

of the DTV Transition: 370 Days and Counting to the Subcomm. on

Telecomms. and the Internet of the H. Comm. on Energy and

Commerce, 110th Cong. 2-3 (2008), available at

http://energycommerce.house.gov/cmte_mtgs/110-ti-hrg.021308.M

cSlarrow-testimony.pdf; statement of Glen Britt, President and CEO

of Time Warner Cable, on The Status of the Digital Television

Transition, before the Subcomm. on Telecomms. and the Internet of

the H. Comm. on Energy and Commerce, 110th Cong. 5 (2007),

available at

http://energycommerce.house.gov/cmte_mtgs/110-ti-hrg.032807.Br

itt-testimony.pdf. The NCTA represents cable operators serving more

than ninety percent of cable households. 

statements exist in the present record, for cable operators have

publically stated through their association that they will, in any

event, voluntarily do what the Viewability Order requires.5 And

unlike in Quincy Cable, there is no indication in the record that

any cable operator that otherwise would have carried one of

petitioners’ cable programs will not do so because of the

Viewability Order. In Turner I, the Supreme Court noted that

the must-carry statute burdened cable programmers’ speech “by

reducing the number of channels for which they can compete,”

512 U.S. at 645, but did not conduct an analysis of

programmers’ standing.

 

Petitioners’ claim of standing, based on the assertion that

the Viewability Order necessarily means that they will suffer a
10

First Amendment injury-in-fact as a result of less bandwidth

being available, falters. As petitioners’ asserted injury arises

from an allegedly unlawful regulation of others, under Lujan

they cannot meet their burden merely by virtue of their status as

programmers. Rather, the petitioners must “adduce facts

showing,” Lujan, 504 U.S. at 562, that the challenged regulation

will likely cause a concrete and imminent First Amendment

injury to at least one of them, and that a favorable decision by

this court would redress that injury. While petitioners ask the

court to assume that the Viewability Order will burden their

speech, the causal connection between the Viewability Order

and the claimed injury is tenuous at best. 

Given cable operators’ pledge to follow the Viewability

Order whether or not it is upheld by the court, supra n.5,

petitioners’ proof of causation must rest on facts showing that at

least one petitioner competes for carriage on a cable system that

is a hybrid system bound by the Viewability Order, that will not

opt to switch to all-digital operations, that receives HD (as

opposed to SD) signals from must-carry stations, and that will

not voluntarily follow the Viewability Order anyway but is

operating at “full” capacity. Petitioners would then have to

show that the burden to them resulting from a decrease in

channel capacity for that cable operator will not be alleviated by

increases in capacity across cable systems as a result of the

incentives in the Viewability Order to go all-digital. See

generally Florida Audubon Soc’y v. Bentsen, 94 F.3d 658, 668-

72 (D.C. Cir. 1996) (en banc). As the record before this court

stands, petitioners have “failed to show how carriage of a

handful of must-carry channels would have any impact on cable

operators’ programming choices.” Intervenors’ Br. at 16.

To begin, the Commission found that “many [cable

operators] already have” chosen to operate or transition to all
11

6

 See Consolidated Requests for Waiver, 22 F.C.C.R. 11780,

11806 (Media Bureau 2007).

7

 See NPRM, 13 F.C.C.R. 15092 ¶ 39 (1998); First Report

and Order and Further NPRM, 16 F.C.C.R. 2598 ¶ 9 (2001); Second

Report and Order and First Order on Reconsideration, 20 F.C.C.R.

4516 ¶ 22 (2005). 

digital systems, 22 F.C.C.R. at 21072,6 and cited record

evidence suggesting that “virtually all cable operators ultimately

will do so,” id. (quoting reply comments of National Association

of Broadcasters (“NAB”) and Maximum Service Television

(“MSTV”) at 5) (emphasis in original). Petitioners do not

dispute that digital technology frees up bandwidth creating

additional capacity usable for programming. See Consumer

Elecs. Ass’n v. FCC, 347 F.3d 291, 293-94 (D.C. Cir. 2003).

Comments in the rulemaking record referred to a study of cable

infrastructure projecting further expansion of capacity, and the

Commission observed that the Viewability Order, in providing

an incentive for cable systems to become all digital (to avoid

down-converting digital broadcast signals to analog), could have

a positive impact on petitioners by opening additional capacity

usable for programming. The Commission also pointed to

comments suggesting that the Viewability Order is unlikely to

have an impact on the carriage of most stations because the

“vast majority of broadcasters opt for retransmission consent,”

22 F.C.C.R. at 21076 (quoting comments of Time Warner), and

that “any incremental increase of bandwidth devoted to mustcarry stations will be ‘negligible,’” id. (quoting reply of the

NAB). Petitioners’ reliance on the Commission’s previous

statements7

 that a duplicative carriage regime in aid of digital

transition would burden programmer speech by decreasing the

number of already limited channels for which they can compete

for carriage appears not to acknowledge either that the

Viewability Order affords an incentivized alternative – full
12

digital, which frees up bandwidth – or that the particularity of

injury to these petitioners is missing. As a result, the

Commission observes on appeal, “unlike [in] Quincy Cable,

there is no evidence (and it is very unlikely) that cable systems

with hundreds of channels are ‘saturated’ with must-carry

stations that deprive petitioners ‘any opportunity at all’ to

secure a channel slot.” Resps.’ Br. at 30 (quoting Quincy Cable,

768 F.2d at 1445). 

Additionally, the Commission has since narrowed the scope

of the Viewability Order. On September 4, 2008, the

Commission ruled that small cable systems (i.e., unaffiliated

systems with 2,500 or fewer subscribers or with an activated

channel capacity of 552 MHz or less) are not obligated to

transmit must-carry stations in HD and that all cable operators,

regardless of size, need only transmit must-carry stations in

digital when those stations deliver their signal in HD, or when

digital customers would otherwise be unable to view analog

signals. Carriage of Digial Television Broadcast Signals,

Fourth Report and Order, FCC 08-193, 2008 WL 4092895

(Sept. 4, 2008); supra n.3. Moreover, it is unclear whether

every cable system uses all of its allocated bandwidth. While

petitioners note in their brief that an extremely large number of

cable channels compete for space on networks that generally

have many fewer channel slots than there are channels, this is

not necessarily a perfect proxy for full use of bandwidth. When

pressed during oral argument, petitioners were unable to point

to any cable system using its full bandwidth, asserting instead

that it is clear that there are far more speakers than capacity.

Finally, judged against Quincy Cable, petitioners’ theory of

redressability is exceedingly vague. Cable operators have stated

that they will ensure viewability regardless of our decision here.

Moreover, because cable operators do have significant choice in

allocating their bandwidth capacity between different uses (e.g.,
13

pay-per-view, various content providers, telephone services,

etc.), it is unclear whether these petitioners will or will not be

offered channel space as a result of the Viewability Order.

Petitioners offer no particularized information in this regard. It

is unclear, in other words, whether any cable operator that

otherwise would have offered these cable programmer

petitioners channel space will deny them channel space because

of the Viewability Order. Petitioners fail to “adduce facts

showing,” Lujan, 504 U.S. at 562, that reversal of the

Viewability Order would result in additional capacity for which

they compete and thus redressability, like causation, remains

speculative.

 

Accordingly, we must dismiss the petition for review for

lack of Article III standing and we do not reach the merits of

petitioners’ challenges to the Viewability Order.