Protecting Public, Educational and Government Channels

1
Protecting Public, Educational and Government
Channels

• NATOA Spring Conference 2009
• WASHINGTON, D.C.
• Joseph Van Eaton
• May 18, 2009

Download this presentation at www.millervaneaton.
com Miller Van Eaton P.L.L.C. P Washington, D.C
. P San Francisco, CA. P 202-785-0600
2
Key Cases

• City of Dearborn v. Comcast of Michigan, No.
  08-10156,
  
• See esp. Opinion on Motion to Dismiss (E.D.
  Mich. Oct. 3, 2008)
  
• In the Matter of Petitions for Declaratory Ruling
  Regarding Public, Educational, and Governmental
  Programming, MB Docket No. 09-13 CSR-8126,
  CSR-8127, CSR-8128

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Dearborn/Meridian Township Comcasts Plan

• digitize PEG channels while providing bcast in
  analog
  
• move to 900-series channels (not visible at those
  numbers on digital TV)
  
• give basic-only subs one free box/1 year sell
  up all others
  
• Effect PEG goes dark for subs with analog sets
  unless subs pay more
  
• Effect channels hard to find on every set

4
Comcasts Plan the Response
State law preempts says nothing re PEG

• Local franchises prevent channel changes/require
  PEG on basic
  
• Fed law requires PEG on basic
• PEG not on basic if viewed as a different product
  by the consumer
  
• Fed law also requires operator to transmit PEG
  signals so every sub can get them unless we
  agree otherwise
  
• Fed law also prohibits op from exercising
  editorial control over PEG (531(e))
  
• pricing
• location
• content

No basic if there is eff. competition (543(b)(7))
PEG was on basic!
Fed law does not set substantive standards for
PEG
5
Comcasts Plan the Response
Cable Act (531(c)) preempts existing franchises
enforceable! Silence does not give operator
authority

• Our local franchises prevent channel
  changes/require PEG on basic
  
• Fed law also requires PEG on basic
• PEG not on basic if it would be viewed as a
  different product by the consumer
  
• Operator required to transmit our signals so
  every sub can get them unless we agree
  otherwise
  
• Operator cannot exercise editorial control over
  our channels (531(e))
  
• pricing
• location
• content

Send issue to FCC!
Send issue to FCC!
Disagree
Disagree
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Dearborn/Meridian Township Result

• Court issued TRO preventing Comcast from
  digitizing PEG
  
• Channel locations cannot change
• Seven questions sent to FCC for determination

7
ATT Channel 99 Platform

• An application not a channel
• Hard to access/surf
• Hard to find local programming
• Lower quality
• Encoded/decoded differently
• Missing
• secondary audio
• closed captioning
• ability to record
• ACM, NATOA Chapters, Community Colleges, several
  cities file at FCC
  

8
Petitions filed at FCC
Open captioning OK

• Channel 99 violates closed captioning rules.
• Channel 99 does not provide a channel within
  meaning of Cable Act
  
• Channel 99 not consistent with technical
  standards rules applicable to cable systems
  
• ATT engaged in unlawful censorship (531(e)) by
  stripping content from PEG
  
• Cable Act requires non-discriminatory treatment
  of PEG channels

Were not a cable op!
Old rules silly
Censorship rules not aimed at this
Non-discrim not required no real fed standards
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Status of Petition

• ATT petitions consolidated with Dearborn
  referral
  
• FCC sought public comment (over 500 submissions)
• Now awaiting decision from FCC
• Key an FCC decision ASAP
• change re-education
• re-education more costs

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Immediate Significance

• May determine whether ATT is a cable system
• May determine what federal standards apply to PEG
  under existing law
  
• May indicate whether FCC can protect PEG
• May set stage for challenges, changes, to state
  laws
  

11
Cases Underline

• In digital environment, quality, accessibility,
  functionality can vary from channel to channel
  
• State laws limiting local franchising authority
  were not designed to deal with digital world
  
• Ops can be expected to exercise control over
  infrastructure to overcome bandwidth problems
  at public expense
  
• Need for a broadband policy that ensures a funded
  green space for the public