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from: Wet Machine

Follow Up On MI PEG Lawsuit
by Harold Feld

So the judge heard the motion for a restraining order by Dearborn and Meridian to keep Comcast from migrating PEG channels to digital. The court issued the restraining order, finding that the towns were more likely than not to prevail on several of their issues, that Comcast would suffer no harm from the delay, but that the cities would potentially suffer irreparable harm if Comcast migrated the PEG channels to where most citizens couldn't see them. (You can find the opinion, the pleadings, and other useful information here.)

On the question of the definition of “basic tier” I raised in yesterday's post, the court found:

1) Nothing requires a cable operator to offer the basic package as all digital or all analog, so it is more likely than not that Comcast can migrate PEG to digital while keeping broadcast channels analog.

2) However, cable operators must offer the basic tier on equal terms. Requiring rental of additional equipment to get part of the basic tier therefore is more likely than not a violation of law.

A preliminary restraining order is not a final judgment. The court must make a determination on what arguments are “likely to prevail.” But the court may rule otherwise once the questions are fully briefed and argued. Hence, the “more likely than not” language.

But the courts findings produce some oddball results. By implication, at least so far, the court accepts that the obligation to offer a “basic tier” persists even after the FCC finds “effective competition.” But despite what I would think is fairly straightforward legislative language and strong legislative language, the court thinks it more likely than not that cable operators can treat the elements of the basic package in a different way from each other.

I expect fights over the basic package and the meaning of Section 623(b)(8) to become much more common, as cable operators try to migrate more popular programming to digital and look to stop carrying analog after the digital transition. For me, the real question is: “Will the FCC weigh in?” If so, when, and how? Under NCTA v. Brand X (yes, that Brand X), the FCC can weigh in at any time, since a decision by a court deciding the issue does not alter the deference due to the agency. So there's no rush for the FCC to assert jurisdiction on its own. Cable operators are rather unlikely to rush in and ask the FCC to start a rulemaking to preempt the states on this issue. So will someone else go to the FCC and ask them to resolve the issue? PEG supporters or local governments would be a logical choice, but they don't exactly have warm fuzzy feelings about this FCC Chairman given his willingness to preempt local franchise authorities to the detriment of PEG and local consumer protection. Especially given the outcome in Michigan (which buys time) and the possibility of Congressional help, I expect the PEG folks to wait and see what the new FCC looks like before going to the FCC.

Broadcasters might also look to get the FCC involved early, rather than wait for a situation to develop. But that seems unlikely. Still, if folks at PBS or folks representing the independent affiliates get spooked, or if problems develop in the field, we may see the broadcasters come in.

from: TV News Day

Comcast Can’t Move Local Channels, Judges Say
January 15, 2008

A state judge and a federal judge have each ruled that Comcast cannot move community-access cable television channels higher up the dial and out of the reach of thousands of Michigan subscribers as it had hoped to do on Tuesday.

from: Blogging Broadband

Comcast Blunders in TRO Argument on PEG

Litigation can be full of ironies. The federal temporary restraining order which prevents Comcast from migrating Michigan’s public, educational, and government access channels to the 900 range of the company’s lineup again proves the point.

Note: File under political payback. In the letter to Employees, AT&T president reminds employees that they owe King for helping to pass SB5, the first state-wide video franchise passed in the country - at AT&T's request.

from: Star Telegram

AT&T letter supporting King draws criticism

Note: A summation of the legal documents concerning the lawsuit in Michigan with Comcast

from: Miller & Van Eaton

MICHIGAN CITIES WIN PRELIMINARY INJUNCTION AGAINST COMCAST'S PEG CHANNEL MOVE

The Township of Meridian and the City of Dearborn filed suit in federal district court January 11, 2008, asking the court to stop Comcast from dropping analog PEG channels and providing those channels only as a digital service. On January 14, 2008, the court issued a temporary restraining order and a preliminary injunction (which remains in effect until a new order issues from the court) preventing Comcast from moving the PEG channels. The text of the court's order is linked below.

Note: This petition site has been set up in response to Comcast's actions in Michigan. Take a moment and sigh on.

Go to: Petitions

COMCAST MUST BE STOPPED

Petition created by: The Producers A

Because of the recent actions in Michigan and similar actions executed and planned across the country including, but not limited to; The closing of Public Access studios. The termination of the Community Calendar's & bulletin boards. The planned move of Public, Educational and Governmental programming to additional fee 900 channels and rate increases of 13.5% for services.

Wauwatosa residents had expressed safety concerns over AT&T cabinets

Nearly a year before the recent explosion of an AT&T VRAD cabinet in Wauwatosa Wisconsin, some local residents had expressed safety concerns about the large boxes. At a February 12, 2007, City Planning Commission Meeting, residents opposed the installation of a VRAD box and had sent emails and information to the Commission making specific reference to the fires and explosions in Houston Texas.

from: Bloggong Broadband

Comcast Responds to Chairman Dingell, and Just Says ‘No’

From Blogging Broadband, January 14, 2008
By Jon Kreucher

It used to be that a letter from the Chairman of a powerful Congressional committee meant something �” especially if that committee plays a large role in your regulatory future. Those days, however, may be behind us.

from: OC Register

Friday, January 11, 2008
Costa Mesa officials try to block 'eyesore'
AT&T wants to put scores of metal boxes on city streets, raising concerns about aesthetics.

By JEFF OVERLEY
THE ORANGE COUNTY REGISTER
Comments 1 | Recommend 7

COSTA MESA – Plans to add scores of steel boxes to city streets for Internet access and television service are riling elected officials who are concerned about damage to neighborhood aesthetics.

from: Free Press

Legal battles stall Comcast's plan to move public access channels
January 14, 2008
By DAVID ASHENFELTER
FREE PRESS STAFF WRITER

A Macomb County judge issued a temporary order late today blocking Comcast's plans to move community access channels higher up the dial and out of the reach of thousands of Michigan cable subscribers with analog televisions in Warren and possibly the entire state.