This is a follow up to this clip from Bill Moyers now where William Lowery is interviewed.
William Lowery was nice enough to provide me with some more information about the details of the case. Please spread the word about this. People need to know that their public access facilities and programming are at stake. However this case turns out will provide a model for the rest of the cable companies for what they can get away with (not living up to their community obligations).
Posted by Lisa at September 04, 2003 09:25 AM | TrackBack
Ok, Lisa -- I'll try to explain it with as little legaleese as possible.
Essentially, under the Communications Act, cable televisions are regulated at both the federal and local level. Local governments issue franchises to cable companies which allow the operators to construct and operate their systems in the public rights-of-way within the jurisdiction. The franchises are for a given number of years -- usually for 10 -15 years. When those franchise expire, they must be renewed. The Cable Act provides two mechanisms for franchise renewal: informal negotiations, and a formal, administrative process.
In the formal process, a city, after conducting an assesment of its future cable-related needs and interests, may issue a Request for Renewal Proposals (RFRP) which sets forth those needs and interests and minimum requirements for a proposal that meet those needs and interests. The Cable Act authorizes a city to require, among other things, channels, facilities, and equipment for public, educational, and govermental (PEG) use. In addition, the Act permits a City to require capacity on an "institutional network" which the City can use for governmental and educational communications.
Once a city issues an RFRP, the operator must then submit a formal renewal proposal. The city the, after assessing the proposal, must either grant renewal or issue a "preliminary assessment of denial" and commence an administrative hearing to determine whether, among other things, the proposal is reasonable in light of the identified needs and interests, taking into account the costs of meeting those needs.
In San Jose, the cable franchisee was owned by TCI when the initial renewal period began. TCI was subsequently acquired by AT&T, and then AT&T was acquired by Comcast. The City spent almost 4 years trying to reach agreement on renewal terms through informal negotiations, but the negotiation were ultimately unsuccessful. The City then issued an RFRP, which AT&T responded to by submitting a formal proposal. Subsequently, Comcast took over. The City ultimately issued a preliminary assessment of denial, and commenced the formal administrative hearing. Comcast then brought suit, claiming that the many of the requirements of the City's RFRP violate the Cable Act, and therefore Comcast's First Amendment rights, because they exceed the City's authority under the Act. Specifically, Comcast complains that the "institutional network" the City describes in the RFRP is beyond the scope of what the Act authorizes, and the PEG requirements exceed what is contemplated by the Act. Comcast also claims that the City's administrative proceedure violates its due process rights. Comcast brought a motion for preliminary injunction seeking to halt the City's process.