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California has just given a big boost to broadcasters' efforts to delay the return of the analog TV broadcast spectrum. In mid-December, the California Energy Commission adopted regulations that would prohibit the sale in California of the currently-available digital-to-analog off-air converter boxes. They did it by adopting a power consumption limit that is far below the power specifications of current products.

Never mind that Congress wants the broadcasters to give up their analog spectrum by the end of 2006. In the closing days of the 2004 session, our elected representatives adopted a "sense of the Congress" resolution to that effect. While this doesn't make the giveback mandatory as a matter of law, it puts pressure on the FCC to adopt regulations that have that effect. The NAB was supporting an alternative resolution that would apply only to channels 63 to 69, and set the date a year later, but the NAB lost.

In order for a mandatory giveback to be politically acceptable, there must be converters on the market that allow viewers to continue to use their existing analog TV sets. Congress would not be able to weather the political firestorm if those millions of sets were to become boat anchors.

What the California Energy Commission did was to require these converter boxes to consume less than 8 watts of power in active mode, and 1 watt in standby mode. This requirement was contained in an amendment to Section 1605 of Title 20 of the California Code of Regulations. You can find it at www.energy.ca.gov/appliances/. It applies to a "digital television adapter," which is defined as "a commercially-available electronic product which converts digital video broadcast signals for use by an analog video device such as a TV or VCR."

Is 8 watts a practical limit? The only way I know to answer that question is to look at currently available off-air digital broadcast converters. There are only a few on the market right now. There is the Motorola HDT101. It has a power consumption specification of 30 watts. Its older sister, the HDT100, also consumes 30 watts. Zenith makes the HDV420, which consumes 18 watts. The DEXUS Digital Stream HD1150 has a power consumption of 25 watts. (Samsung has two products also, the SIR-T165 and the SIR-T151, but doesn't reveal their power consumption.)

So based on the data I have before me, I conclude that the 8-watt limit cannot be achieved by products on the market today. As of the effective date of the new regulation, January 1, 2007, these products cannot be sold in California.

In the same proceeding, California adopted 3-watt power consumption limits for TV sets and DVD players. But those limits only apply to the "standby-passive" mode, while the 8-watt limit for the digital converter box applies to the active mode. The standby mode applies to the lowest power consumption level, where the user thinks the device is off. There are no limits for TVs and DVD players in the active mode.

Originally, California also planned to adopt power consumption limits for "integrated receiver decoders," which are cable and satellite set-top boxes. But in that case, sanity prevailed. The consumer electronics industry educated the California commission, and convinced it that there are too many varieties of set-top boxes, with too many options that consume differing amounts of power. So that proposal was dropped from the final regulations.

Now, you might think that it may be possible to build converter boxes that achieve the 8-watt limit by 2007. Evidently that's what California thought, although I could find no evidence in the record supporting that view. All I found was an opinion from a Natural Resources Defense Council representative that it was feasible. (He referred to a European converter made by Pace that meets the 8-watt spec, but that box supports only SD video, not HD, so he was comparing apples and oranges.)

The FCC encountered a similar circumstance back in the 1970s, when it tried to set a 12 dB noise figure standard for analog UHF tuners. At that time, UHF TV stations were at a competitive disadvantage to VHF stations, partly because VHF tuners had a noise figure in the 6 to 8 dB range, while UHF tuners were in the 14 to 18 dB range. In 1978, the Commission ordered a 12 dB UHF noise figure limit for all new TV models after 1982, but recognized that the technology to achieve that level was not yet available.

The consumer electronics industry appealed to the DC Circuit Court of Appeals, on the grounds that the FCC went beyond its authority. The court agreed and overturned the FCC's decision, saying that the FCC "may set standards for UHF tuner noise that reflect current electronic capability. It may not, however, establish standards for the future that are not currently attainable with existing technology." It also said that "the Commission may not prescribe noise regulations that go beyond the present state of the art." (EIA v. FCC, 204 USApp.DC 417)

Does the California Energy Commission have the authority to impose limits without any assurance they can be achieved? We may never know, because probably no one will appeal this regulation. Certainly the broadcasters won't. But the FCC needs to watch out when this sleeping dog decides to start biting.

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