213 F.3d 724 (D.C. Cir. 2000)
General Instrument Corporation, Petitionerv.Federal Communications Commission and United States of America,RespondentsNational Cable Television Association, Inc., et al., Intervenors
Nos. 98-1420, 98-1423, 98-1576, 99-1204, 99-1312, 99-1313
United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 6, 2000Decided June 6, 2000

[Copyrighted Material Omitted]
On Petitions for Review of Orders of the Federal Communications Commission
Theodore White house argued the cause for petitioners and  supporting intervenor.  With him on the briefs were John L. McGrew, Glenn B. Manishin, Christy C. Kunin, Daniel L.  Brenner, Neal M. Goldberg, Loretta P. Polk, Bruce D. Ryan,  and Michelle W. Cohen.
Roberta L. Cook, Counsel, Federal Communications Commission, argued the cause for respondents.  Christopher J.  Wright, General Counsel, Daniel M. Armstrong, Associate  General Counsel, Lisa A.Burns, Counsel, Joel I. Klein,  Assistant Attorney General, U.S. Department of Justice, Robert B. Nicholson and Robert J. Wiggers, Attorneys, were on  the brief.  James M. Carr and Nancy L. Kiefer, Counsel,  Federal Communications Commission, entered appearances.
David Alan Nall argued the cause for intervenors.  With  him on the brief were Jonathan Jacob Nadler, Jonathan D.  Blake, Joe D. Edge, Mark F. Dever, Catherine M. Krupka,  and Kevin S. DiLallo.  Benigno E. Bartolome, Jr. and John  W. Pettit entered appearances.
Before:  Silberman, Williams, and Sentelle, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Silberman.
Silberman, Circuit Judge:


1
Petitioners challenge an order  of the Federal Communications Commission precluding cable  television operators from offering "integrated" converter boxes that perform both security and ancillary functions.  We  think the Commission's ban on integrated devices is premised  on a reasonable interpretation of section 629 of the Communications Act, and we deny the petitions.

I.

2
This case concerns a piece of electronic equipment familiar  to most American consumers:  the set-top cable or "converter" box.  Converter boxes are the most common instrument  ("navigation device") that provides access to cable programming or other multichannel video programming services1.  The typical converter box performs an important security or  "conditional access" function, containing embedded technology that decodes or descrambles a digital or analog cable  signal.2  It is this function that precludes a consumer from  accessing tiers of cable programming not part of his subscription package.  At the same time, converter boxes often  perform other tasks--which we refer to for simplicity's sake  as ancillary functions--unrelated to security.  For instance,  converter boxes commonly include channel tuners and provide  access to video programming guides.


3
Converter boxes traditionally have been available to consumers only by lease from cable operators, as part of a cable  service package.  Section 629 of the Communications Act,  passed by Congress as part of the Telecommunications Act of  1996, sought to change this state of affairs.  The FCC was  directed to take steps to make converter boxes (and other  navigation devices) commercially available from sources other  than cable operators.  Entitled "Competitive Availability of  Navigation Devices," section 629 provides as follows:


4
(a) Commercial consumer availability of equipment used to access multi-channel video programming distributors.  The Commission shall, in consultation with appropriate industry standard-setting organizations, adopt  regulations to assure the commercial availability, to consumers of multi-channel video programming... of converter boxes, interactive communications equipment, and other equipment used by consumers to access multi-channel video programming ... from manufacturers, retailers, and other vendors not affiliated with any multi-channel video programming distributor.  Such regulations shall not prohibit any multi-channel video programming distributor from also offering converter boxes, interactive communications equipment, and other equipment used by consumers to access multi-channel video programming... if the system operator's charges to consumers for such devices and equipment are separately stated and not subsidized by charges for any such services.


5
(b) Protection of system security.  The Commission shall not prescribe regulations under subsection (a) of this section which would jeopardize security of multi-channel video programming ..., or impede the legal rights of a provider of such services to prevent theft of service.


6
47 U.S.C. § 549(a)-(b).


7
The Commission issued a Notice of Proposed Rulemaking  seeking comment on how best to implement section 629's  requirements.3  It explicitly recognized that it was required  to balance section 629(a)'s mandate for "commercial availability" with section 629(b)'s prohibition against any Commission  action that would "jeopardize" the security of cable programming.  Any solution requiring devices containing conditional  access functionality to be made widely available at retail  certainly would exacerbate the problem of cable theft, already  a $5 billion dollar drain on cable operators and their customers.  But the Commission offered a possible alternative that  it thought might "assure commercial availability" of navigation devices without posing a major risk to cable security.  It  noted that


8
[i]n theory, it would be possible to take a typical decoder box and divide it into two separate parts.  One part would contain the operational and functional components such as the tuner, the remote control circuitry, the power supply, and any other non-access control features.  A second part would contain the access control features. With an interface, it would be possible to have the first part of the device available through retail outlets, and the second  part, containing the more sensitive access control apparatus, available only from the service supplier.


9
In other words, the Commission suggested a separation of the  traditional converter box into two parts (unbundling), permitting a device providing ancillary functions to be available at  retail while allowing cable operators to maintain exclusive  control over conditional access functionality.


10
After receiving comments, the FCC issued an order adopting this proposal.  See In re Section 304 of the Telecommunications Act of 1996, Commercial Availability of Navigation  Devices, 13 F.C.C.R. 14775 (1998) ("Navigation Devices Order").  Cable operators were directed to make available separate security components or "modules" by July 1, 2000.  See  47 C.F.R. S 76.1204(a)(1) & (e).  The Commission's notion  was that these modules could then be "plugged in" to commercially available equipment performing ancillary functions. It recognized that standardized digital and analog interfaces  would be necessary to make the security modules uniformly  compatible with retail equipment performing ancillary functions.  After a lengthy discussion of technological alternatives, the Commission, noting the "dangers of detailed government standard setting," left it to the cable industry and its  national standard-setting organizations to develop the appropriate interfaces.


11
The FCC did more than impose this separation requirement on cable operators.  The question remained concerning  precisely what equipment cable operators would be allowed to  provide.  In addition to mandating the "commercial availability" of converter boxes, section 629(a) states that the Commission "shall not prohibit" cable operators from providing those devices.  Cable industry commenters asserted that operators  should be able to offer the traditional "integrated" converter  boxes that perform both conditional access and ancillary  functions, so long as they make available a separate security  module for use in combination with retail navigation devices. The Commission disagreed:


12
We conclude that the continued ability [of cable providers] to provide integrated equipment is likely to interfere with the statutory mandate of commercial ability and that the offering of integrated boxes should be phased out.  We agree with those commenters who note that integration is an obstacle to the functioning of a fully competitive market for navigation devices by impeding consumers from switching to devices that become avail-able through retail outlets.


13
It accordingly required cable operators to cease providing  new integrated cable boxes by January 1, 2005.  See 47  C.F.R. S 76.1204(a)(1).  Cable operators could, however--like  any retailer--provide a device performing only ancillary functions, which could in turn be combined with the security  module by the consumer.


14
Commissioner Powell wrote a separate statement dissenting in part.  While he agreed with the Commission's requirement that cable operators make available separate security  modules with standard interfaces, he argued that the agency's  decision barring them from producing integrated devices was  unsound.  He thought that efficiencies might well accompany  the integration of security and ancillary functions in a single  device, and that the Commission's ban might "den[y] a cost  effective choice for consumers."  "It is quite plausible to me," he explained, "that the 'impediment' to switching to retail  may in fact be a consumer preference for distributor-supplied  integrated boxes!  I see no reason to attempt to control  consumer preferences."


15
In response to requests for reconsideration from several commenters, the Commission modified some of the conclusions it reached in the Navigation Devices Order.4  It deferred indefinitely the July 2000 separation deadline for navigation devices providing access to analog video programming. Finding a consensus among commenters that the cable industry was rapidly moving from analog to digital programming,  the FCC concluded that "the application of Section 629 to  analog devices would result in unnecessary expenditures by  [the cable industry] for a module that will soon be obsolete." However, it reaffirmed the separation deadline for digital  devices and, importantly for the purposes of this case, it also  applied the separation requirement to so-called "hybrid" converter boxes capable of processing both analog and digital  signals.  The agency, over the protestations of commenters in  the cable industry, maintained its prohibition against integrated navigation devices.  Commissioner Powell again voiced  his objection to the integration ban in a brief dissenting  statement.


16
Several members of the cable industry now petition for  review of the Navigation Devices Order and the Reconsideration Order.  Petitioners' primary argument is that the FCC  exceeded its authority under section 629 by precluding cable  operators from offering integrated converter boxes to their  customers.  They do not challenge the Commission's separation requirement insofar as it applies to digital equipment. They do, however, object to the Commission's requirement that cable operatorsmake available separate hybrid security  modules.

II.

17
Petitioners assert that the integration ban is squarely  foreclosed by the second sentence of section 629(a), which  states that the Commission's regulations "shall not prohibit  any multi-channel video programming distributor from also  offering converter boxes, interactive communications equipment, and other equipment used by consumers to access multi-channel video programming." (emphasis added).  While  the term "converter box" is not defined in the 1996 Act,  petitioners claim that the term at the very least includes  those integrated devices that the Commission banned in the  Navigation Devices Order.  They point out that the most  common type of navigation device in existence at the time of  the passage of the 1996 Act was the integrated converter box.The Commission stumbles over the first step of Chevron  U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467  U.S. 837 (1984), in petitioners' view, because the second  sentence of section 629(a) clearly prohibits the Commission  from enacting the integrated device ban.


18
The attractive simplicity of petitioners' construction, as the  Commission persuasively responds, dissolves upon close scrutiny.  For the term "converter box" also appears in the first  sentence of section 629(a):  "The Commission shall enact  regulations to assure the commercial availability of converter  boxes...." (emphasis added).  If petitioners' interpretation is  correct, the Commission is therefore equally compelled by the  plain language of the statute to permit retailers to provide  integrated navigation devices, see, e.g., Sullivan v. Stroop, 496  U.S. 478, 484 (1990) (noting presumption that "identical words  used in different parts of the same act are intended to have  the same meaning")--certainly an unacceptable result from  petitioners' point of view.


19
Petitioners gamely insist that the parallel language in the  first and second sentences of 629(a) is not fatal to their  argument.  They do not dispute that Congress meant to use  the term "converter box" consistently in the statute.  They  acknowledge that, if section 629(a) were to be applied in  isolation, the Commission would be obliged to permit both  cable providers and retailers to provide integrated navigation  devices.  Their construction is saved from that concededly  unacceptable outcome according to them, because another  section, section 629(b), limits section 629(a), precluding the  Commission from implementing the statute's commercial  availability requirement in a manner that "jeopardizes" the  security of cable programming.  Since permitting retailers to offer integrated devices would undoubtedly "jeopardize" security, petitioners reason, the Commission must prohibit them  from doing so--but this limitation does not alter the clear  command in the second section of section 629(a).


20
Petitioners offer a plausible construction, but it is somewhat strained.  They reach their result only by reading  section 629(b) not merely to "limit" section 629(a), but to  disrupt the textual symmetry of its language.  We have  before us two constructions then, both of which interpret  section 629(b)'s mandate as "limiting" section 629(a) in a not  obvious manner.  The FCC's interpretation maintains consistency between the provision's two sentences by adopting a narrow definition of "converter box."  Petitioners take the  opposite approach, holding to the more typical definition of  "converter box" in one sentence of section 629(a) at the price  of the same term meaning something entirely different in the  other.  Under Chevron, we are obliged to accept the Commission's interpretation which is easily a permissible one.


21
We move on to petitioners' alternative (but related) statutory theory:  that section 629(b)'s prohibition of regulations"which would jeopardize security of multi-channel video programming" precludes the Commission's integration ban (emphasis added).  It is argued that evidence in the record  indicates that "embedded security currently contained in integrated equipment is a more secure method of protecting  intellectual property than is separated security."  Petitioners  contend that this evidence, combined with a rather liberal  definition of the word "jeopardize" as meaning any increase  in security risk, should lead us ineluctably to the conclusion  that the Commission's prohibition of integrated devices is  unlawful.


22
We think petitioners' premise that any Commission action  that (even slightly) increases security risk "jeopardizes" cable  programming is wrong.  To place something in "jeopardy"  means to subject it to serious or significant danger.  See  Webster's Third New International Dictionary (1981) (defining "jeopardize" as "to expose to danger (as of imminent loss,  defeat, or serious harm):  Imperil").  In any event, we do not  see how the Commission's decision to ban integrated converter boxes in and of itself poses any threat to system security. Petitioners point to evidence purportedly showing that the  separation of security functions increases the risk of cable  theft.  But petitioners do not challenge the Commission's  separation requirement--at least with respect to digital navigation devices.5  Regardless of our disposition of the Commission's integration ban, would-be cable thieves will be able to  request separate security modules from their cable operators. Petitioners' failure to explain how the Commission's bar on  integration would in and of itself threaten the security of  digital cable systems is fatal to their section 629(b) statutory  argument.  In sum, we think petitioners' statutory objections  to the Commission's ban on integrated digital and hybrid  navigation devices, while well-presented by counsel, are insufficient to clear the formidable hurdle of Chevron deference.6


23
Petitioners at oral argument sought to slide from their  statutory claim to an argument that the Commission's economic policy decision to ban the sale of integrated devices was  unsound--essentially to echo Commissioner Powell's thoughtful position.  The Commission concluded that integration would "impede[ ] consumers from switching to devices that  become available through retail outlets," Navigation Devices  Order, 13 F.C.C.R. at 14803.  This statement does not in and  of itself tell us very much, without further explanation as to  why consumers would be "impeded."  Consumers might have  chosen not to purchase retail devices for perfectly sensible  economic reasons--because, for instance, there are efficiency  gains captured in the manufacture of an integrated box that  lead it to cost less than the combined cost of a separate  security module and a retail device, or because consumers  view as too high the transaction costs of seeking a separate  ancillary device at retail.  If this is the case, the integration ban does nothing more than deny the mostcost-effective  product choice to consumers--an ironic outcome for an order  implementing "one of the most pro-consumer, pro-competitive  provisions of the Telecom Act."  Id. at 14844 (separate statement of Commissioner Ness).  Perhaps there are benefits  that will flow to consumers from the integration ban,7 but the  Commission did not clearly spell them out.  If it had, and if  we nevertheless thought Commissioner Powell had the better  argument, we would not on that basis alone be justified in  reversing the Commission's economic judgment.  See City of  Los Angeles v. United States Dep't of Transp., 165 F.3d 972,  977 (D.C. Cir. 1999) ("In reviewing the Department's order,  we do not sit as a panel of referees on a professional  economics journal, but as a panel of generalist judges obliged  to defer to a reasonable judgment by an agency acting  pursuant to congressionally delegated authority.").


24
We need not decide this question, however, since petitioners did not assert in their briefs that the Commission's  integration ban was arbitrary and capricious.  At oral argument, counsel responded to this omission by noting that they did make a Chevron argument in their opening brief, and  although it was phrased in Chevron step one terms, it necessarily implied a step two argument as well, and a step two  Chevron argument is close enough to an arbitrary and capricious claim.  Even granting petitioners' point that its statutory argument allows us to consider whether the statute, if  ambiguous, was reasonably interpreted (Chevron step two),  their problem is that that argument was put entirely in terms  of statutory interpretation.  At no point in their opening brief  did petitioners contend that, even assuming the statute did  not foreclose the Commission's policy, it was nevertheless  unreasonable.  To be sure, we have recognized that an arbitrary and capricious claim and a Chevron step two argument  overlap, and because of that we have not been sticky as to  whether an argument in the area of overlap is characterized  as a Chevron step two claim or as an arbitrary and capricious  challenge.  Whether a statute is unreasonably interpreted is  close analytically to the issue whether an agency's actions  under a statute are unreasonable.  See National Ass'n. of  Regulatory Util. Comm'rs v. ICC, 41 F.3d 721, 726 (D.C. Cir.  1994).  But here the contention petitioners pressed at oral  argument is outside the area of overlap:  they challenge the  Commission's assumptions about market behavior for reasons  wholly independent of the statutory arguments made in their  opening brief.  This is not a case of a mere mischaracterization of an argument, but rather of a party raising an entirely  new argument--the reasonableness of the Commission's economic judgment--in its reply brief.  Since petitioners' initial  brief did not in our view properly put the Commission on  notice that its economic reasoning was being challenged, we  do not think it appropriate to consider the arbitrary and  capricious challenge.  See, e.g., McBride v. Merrell Dow and  Pharmaceuticals, Inc., 800 F.2d 1208, 1210-11 (D.C. Cir.  1986).

III.

25
There remain petitioners' arguments directed to the Commission's requirement that cable operators provide separate  security modules.  As mentioned above, the Commission exempted analog-only devices from this requirement in its  Reconsideration Order, and petitioners do not contest the  Commission's separation requirement with respect to digital  navigation devices.  Petitioners' objections, then, concern  only the application of the separation mandate to a rather narrow class of navigation devices:"hybrid" converter boxes  capable of processing both analog and digital signals.


26
The first of these arguments, to which petitioners devote  much effort, is that the separation requirement violates the  "Eshoo Amendment," Congress's 1996 modification to section  624a of the Communications Act.  See 47 U.S.C. S 544a.  Section 624a, passed by Congress in 1992, directed the Commission to take steps to facilitate the compatibility of cable  systems with consumer equipment, such as televisions and  VCRs.  The Eshoo Amendment, apparently animated by  concerns that the FCC was using its power under section  624a to impose technology-forcing technical standards on the  cable industry, required the Commission to "ensure that any  standards or regulations developed under the authority of  this section to ensure compatibility between televisions, video  cassette recorders, and cable systems do not affect features,  functions, protocols, and other product and service options."  See 47 U.S.C. S 544a(c)(2)(D).  Petitioners argue that the  Commission's requirement that cable providers provide a  hybrid security module constitutes a de facto mandate that  the industry adopt a particular protocol, the EIA-105 Decoder Interface, that violates the "letter and spirit" of the  Eshoo Amendment.  Indeed, they inform us, it was a concern  about the Commission's adoption of that very interface in an  earlier proceeding that prompted Congress to pass the Eshoo  Amendment in the first place.  Cf. Compatability Order at  4127.


27
Even granting the dubious proposition that the Commission  has mandated the cable industry's use of the Decoder Interface in the proceeding under review,8 petitioners' argument is foreclosed by the text of the provision on which it relies. For, as the quoted language above demonstrates, the Eshoo  Amendment applies only to regulations promulgated under  section 624a's equipment compatibility provisions;  its limitations simply do not extend to the Commission's actions in this  proceeding which were pursuant to section 629's independent  grant of regulatory authority.  Nor do we find the legislative  history inconsistent with that precise textual analysis of the  statute.  Although Representative Eshoo by letter to the  Commission sought to support petitioners' interpretation, that  "legislative future" is of almost no value, see United States ex  rel. Long v. SCS Bus. & Technical Inst., 173 F.3d 870, 878-79  (D.C. Cir. 1999), modified, 173 F.3d 890 (D.C. Cir. 1999), and,  in any event, contradicts her statements at the time of the  bill's passage, see H.R. Rep. No. 204, 104th Cong., 1st Sess. at  215 (1995) (Additional Views of Rep. Eshoo) ("[M]y amendment does not affect section 203 [of] H.R. 1555, which assures  that 'set-top' boxes will be made available to consumers  through retail stores.").


28
We also are unpersuaded by petitioners' contention that the  Commission's application of the separation requirement to the  analog security components of hybrid devices impermissibly  "jeopardizes" cable security in violation of section 629(b).  As  the Commission properly observed in its Reconsideration  Order, see 14 F.C.C.R. at 7605, if the analog separation  requirement will violate section 629(b) in every case, without  regard to specific evidence of security risks, and if commercial provision of integrated boxes in fact creates excessive  security risks, then the very mandate of commercial availability itself violates section 629(b)--which is another way of  saying that section 629 violates section 629, at least with  respect to those navigation devices accessing the dominant category of cable programming at the time of the 1996Act's passage.  We certainly understand the Commission's reluctance to conclude that section 629(b) requires this result.


29
Moreover, while petitioners proffer ample evidence--evidence uncontested by the Commission, see Reconsideration  Order, 14 F.C.C.R. at 7605-that analog navigation devices are  more vulnerable to attacks by cable thieves than are their  digital counterparts, it does not necessarily follow that packaging that security hardware in a separate module, as opposed to as an embedded part of an integrated converter box,  "jeopardizes" analog security.  After all, in both situations  the security components themselves remain under the proprietary control of the cable operator.  Petitioners do point to comments in the record explaining how the existence of a  standardized industry wide common analog interface would  increase the risk of theft by "restrict[ing] the development of  security improvements" or by "necessarily reveal[ing] information about the proprietary technology used to provide  security."  Telecommunications Industry Association Petition  for Reconsideration at 4-5;  Comments of Ameritech New  Media at 4.  Conclusory statements like these are, however,  insufficient to establish that the Commission's separation  requirement would "jeopardize" the cable security of operators providing hybrid service--a standard which, as we discussed above, requires a showing of a substantial, as opposed  to slight, risk of harm.


30
Petitioners bring one final argument against the FCC's  application of the separation requirement to hybrid navigation  devices.  As noted above, the Commission had originally  required all cable operators, including those offering analog  programming service, to offer a separate security module.  See Navigation Devices Order, 13 F.C.C.R. at 14793.  Convinced by comments that analog programming was rapidly  becoming obsolete, the Commission reversed itself on rehearing, and indefinitely deferred the separation requirement with  respect to analog-only navigation devices.  It did not, however, extend this exemption to hybrid devices, which are capable  of processing both analog and digital signals.  See Reconsideration Order, 14 F.C.C.R. at 7603;  47 C.F.R. S 76.1204(f).  Petitioners argue that it was arbitrary and capricious for the  FCC to treat analog-only and hybrid devices differently.


31
This claim is based on petitioners' contention that "the  same factors that the Commission identified as supporting the  exemption of analog-only devices ... apply with equal force  to the analog security component of 'hybrid' devices."  But  this is an overstatement.  The Commission did not abandon  its separation mandate for analog-only devices out of concerns  over the security problems inhering in an analog security  interface.  See Reconsideration Order at 7601-03.  Nor did  the Commission base its determination on the research and  development costs of a common analog interface per se. Instead, the agency did not think it worthwhile for the  industry to construct a separate analog security module (not  merely an interface) that "will soon be obsolete" because of  the industry's transition from analog to digital programming. Id. at 7602.  The competitive access mandate of section 629(a)  would be more sensibly satisfied, the Commission reasoned,  by focusing the industry (and the FCC) on the equipment  capable of processing digital signals.  See id. at 7602-03.


32
Equipment, that is to say, like hybrid navigation devices. The Commission found that, unlike analog-only equipment, hybrid devices could interfere with competition in the digital marketplace.  If hybrid devices were included in the deferral, it is more likely that subscribers would lack incentives to look to the marketplace for a digital navigation device if their equipment choice to receive all ser-vices was either to lease a box from the [cable operator],or to purchase a digital box at retail and obtain a separate analog box and a digital security module.Id. at 7603.  In other words, the Commission thought that,  because of their ability to access digital programming, hybrid  devices would likely find a market in the future--a distinction  that explains the Commission's differential treatment of analog-only and hybrid devices.  Petitioners respond that the  Commission offers inadequate evidence to support this assumption about the hybrid navigation devices market.  While the Commission's order is hardly a model of comprehensiveness on this point, we disagree that its conclusion is unsupported by the record.  A coalition of electronic retailers that  supported the Commission's decision to exempt analog-only  devices argued that many cable systems will be hybrid "for  the foreseeable future," and thus should be not exempt from  the separation requirement.  Written Ex Parte Presentation  of Circuit City et al.  Moreover, the Commission's concern  about hybrid devices "interfering with competition in the  digital market" appears well-grounded in common sense.  As  intervenors observe, the ability to offer an integrated "hybrid" box capable of accessing digital programming might  encourage cable operators to incorporate outdated analog  functionality into their navigation devices in order to avoid  the digital separation requirement.  We therefore reject petitioners' final challenge to the Commission's separation requirement for hybrid navigation devices.


33
*  *  *  *


34
For the foregoing reasons, the petitions for review are


35
Denied.



Notes:


1
 "Multichannel video programming services" include not only  cable programming but also other services that provide multiple channels of video programming, such as direct broadcast satellite  service.  See In re Implementation of Section 304 of the Telecommunications Act of 1996, Commercial Availability of Navigation  Devices, 13 F.C.C.R. 14775, 14783 (1998).  Since the regulations at  issue in this case apply primarily to cable operators, see id. at  14800-801 (exempting satellite programming from separation requirement), we use the generic term "cable programming" to refer  to all multichannel video programming services covered by the  contested regulations.


2
 Cable programming can be delivered by means of either  analog or digital signals.  An analog system transmits and receives  microwave signals in their original form;  a digital system, on the  other hand, translates the original signal into a binary code, and  decodes that signal upon receipt.  Because of the increased complexity involved in digital signal delivery methods, digital programming is far less susceptible to theft than analog programming.


3
 See In re Implementation of Section 304 of the Telecommunications Act of 1996, Commercial Availability of Navigation Devices, 12 F.C.C.R. 5639 (1997) ("Notice of Proposed Rulemaking").


4
 See In re Implementation of Section 304 of the Telecommunications Act of 1996, Commercial Availability of Navigation Devices, 14 F.C.C.R. 7596 (1999) ("Reconsideration Order").


5
 Petitioners do challenge the separate security requirement  insofar as it applies to the analog programming delivery function of  "hybrid" navigation devices.  We treat this argument infra.


6
 We reject petitioners' rather labored contention that section  629(d)(1), which states that "[d]eterminations made or regulations  prescribed with respect to commercial availability ... before the  [date of the Telecommunications Act of 1996] shall fulfill the requirements of this section," prohibits the Commission's ban on  integrated navigation devices.  While we doubt that section  629(d)(1) proscribes the Commission from altering commercial availability determinations made prior to the 1996 Act, that provision is  not even implicated in this case since the earlier Commission  "determination" relied on by petitioners became final after the 1996  Act was enacted.  See Order on Reconsideration, In re Implementation of Section 17 of the Cable Television Consumer Protection  and Competition Act of 1992, Compatibility Between Cable Systems  and Consumer Electronics Equipment, 11 F.C.C.R. 4121 (1996)  (issued on April 10, 1996, after 1996 Act's effective date) ("Compatability Order").


7
 Or perhaps, somewhat paradoxically, it is the lack of these  benefits that makes the ban necessary.  The statute requires  "commercial availability," but does not condition that availability on  an improvement in consumer welfare.  So even if it were merely the  transaction costs that "impeded" consumers from buying devices at  retail, the Commission might be authorized to take affirmative steps  to create a retail market.


8
 The Commission insists, quite plausibly, that it has done no  such thing.  Its regulations make no reference to the Decoder  Interface nor to any other particular protocol;  to the contrary, they require only the industry's development of a "commonly used  interface or an interface that conforms to appropriate technical  standards promulgated by a national standards organization."  47  C.F.R. S 76.1204(b).


