Yesterday afternoon, cable programmers such as C-SPAN, the Weather Channel, and A&E Television argued that they have standing to challenge the FCC order that cable operators must go completely digital or provide both a digital and analog version of the same channel before the U.S. Court of Appeals for the D.C. Circuit. Bruce Sokler, partner at the D.C. communications firm Mintz Levin Cohn Ferris Glovsky & Popeo, argued that the programmers do have standing to challenge this order because it limits each channel’s ability to reach customers. Joseph Palmore, the FCC’s deputy general counsel, responded in the brief for respondents as well as in his oral argument that the digital television switch will create more bandwidth space for all cable operators and that, for this reason, the programmers’ fear is unfounded. The National Association of Broadcasters filed an amicus brief in favor of the FCC’s position.
Judges suggested that it is not clear that programmers have standing to challenge an order that affects cable operators, not programmers. Injury to cable channels is arguably speculative and any concrete injury may not be redressable. Additionally, the boxes created to allow analog customers to receive digital signals are designed provide further protection for programmers’ First Amendment rights.