Non-broadcast cable programmers were dealt a legal defeat last Friday by the DC Circuit Court of Appeals, which refused to overturn FCC rules that require hybrid cable systems to transmit must-carry local broadcast channels in both analog and high-definition (HD) digital format for three years following the nationwide digital television (DTV) transition next February. Adopted in September 2007 as part of the FCC’s “viewability” order, the rules at issue in the DC Circuit case implement a congressional mandate that must-carry broadcast TV stations be viewable on all cable subscriber TV sets after the DTV transition takes effect. As part of the viewability order, the FCC also promulgated a material degradation rule that requires cable operators to carry broadcasters’ HD signals in a format and resolution that equates to those of other digital programmers. For those cable networks that have not already switched to all-digital format, the FCC’s order requires cable operators to offer must-carry HD local broadcast stations in both HD and analog format to satisfy congressional viewability requirements. Arguing that forced dual carriage of HD and analog signals on hybrid cable systems leaves less available bandwidth for non-broadcast programmers, C-SPAN and other nonbroadcast programmers asked the DC Circuit to overturn the viewability order on grounds that the FCC’s decision places them at an unfair disadvantage against broadcasters who are able to invoke the must-carry rules to win channel space on cable systems. The court, however, declared that the petitioners lacked standing to challenge the FCC’s rules as “there is no indication in the record that any cable operator that otherwise would have carried one of the petitioners’ cable programs will not do so because of the viewability order.” Noting that “virtually all cable operators” will eventually switch their systems to all-digital format, the three-judge panel concluded: “the causal connection between the viewability order and the claimed injury is tenuous at best.”