cable act – Wetmachine

Sixth Circuit Upholds FCC on LFA Limits: A Bad Decision and A Sad Day for Localism, With Possible Silver Lining for Ancillary Authority and Leased Access.

Harold June 29, 2008 - 6:22 pm June 29, 2008Cable, Tales of the Sausage Factory

The Sixth Circuit has denied the Petitions for Review filed by local franchise authorities (LFAs) and PEG programmers challenging the FCC’s December 2006 Order limiting the ability of LFA’s to negotiate with telco video overbuilders. (You can read a copy of the decision here.)

I am rather disappointed with the decision, as readers might imagine. Not only do I think limiting the authority of LFA’s to protect their residents is a phenomenally bad idea, I think the court takes a very expansive view of FCC authority over LFAs given the legislative history and the statute in question.

On the other hand, the decision potentially provides a substantial boost both the FCC’s ancillary authority and to its leased access reform order, currently pending before the Sixth Circuit. While I find this rather cold and uncertain comfort at the moment, it’s the best I can do in the face of what has become an utter rout for LFAs and PEG programmers. God willing, a future FCC will conduct the inquiry into strengthening PEG programming Commissioners Adelstein and Copps have repeatedly urged.

Some further analysis of the decision and what it might mean below…

This Genuine Commemorative 1993 Petition for Recon Available If You Act Within 30 Days

Harold May 21, 2007 - 9:34 pm July 24, 2012Life In The Sausage Factory, Media Ownership, Spectrum, Tales of the Sausage Factory

Back before I finished law school, my employer Media Access Project was arguing that broadcast stations that did nothing but air program-length commercials (aka the Home Shopping Network and its various clones) did not serve the public interest and therefore did not deserve one of the scarce licenses made available for broadcast television. This being back in the day when there was still some expectation that broadcasters needed to demonstrate that they served the “public interest, convenience and necessity” as required by the statute, you understand. i.e. a long time ago.

As part of the 1992 Cable Act, Congress forced the FCC to have a proceeding to determine if stations that did only home shopping served the public interest. Unsurprisingly, the FCC found that there is a vital public interest need for people who could not otherwise get zirconium diamonds or commemorative collectors plates.

And you wonder why we learned to treat the “public interest” as a joke?

Anyway, my boss, Andy Schwartzman, filed a petition for reconsideration after the FCC issued its decision in 1993. Under the statute, you must file a petition for reconsideration before going to court. So MAP filed, arguing that the Commission had not really done its job when it claimed that Home Shopping Network and other such stations served the local community, and that the Commission had failed to consider other valuable uses of the spectrum.

And there the matter sat — for fourteen bloody years! — with us unable to go to court until the Commission resolved the damn thing. It became something of a joke. Every year, Andy would have a meeting with the Chairman of the FCC, and every year would ask about this petition. Every time someone new got named as head of the FCC’s Media Bureau, we’d trundle over with our wish list of outstanding proceedings, and at the top of the list was always Petition for Reconsideration in Docket No. 93-8. And every time, the Chairman or the Chief of the Media Bureau would promise to look into the matter. And the matter sat….and sat…..and sat….

Until Kevin Martin, under pressure from the new Democratic Congress, started putting the squeeze on the FCC staff to get the damn backlog under control. And then — Wonder of Wonders, Miracle of Miracles! — the staff decided to address our pending Petition for Recon. Of course, by this time, the record had gotten a tad “stale” (more like “mummified”) so the Bureau issued a Public Notice soliciting comment to refresh the record.

Aside from my personal venting, however, why should anyone care? After all, how many home shopping channels are there at this point (not broadcasters who run infomercials from 2 a.m. to 6 a.m., I mean broadcasters who only show home shopping)?

Because, as explained below, this proceeding actually provides an important opportunity to make two points. First, that the public interest really does matter. After years of neglect, there is (I hope) a body of very angry people ready to tell the FCC that the Commission cannot get away with treating the statutory requirement to serve the local community as a joke; that endless chances to buy adorable porceline figurines of kittens do not make up for the total absence of local programming and coverage of meaningful local news. Second, that there are plenty of more valuable uses for broadcast spectrum, like say opening it up for unlicensed use.

VDC — Video VOIP

Harold January 24, 2007 - 11:41 pm February 24, 2013Cable, Tales of the Sausage Factory

I confess I hadn’t heard of VDC: Virtual Video Cable until they filed a program access complaint. Of course, since the vast majority of people probably hadn’t heard about that either (or even know what a “program access complaint” is), I imagine I remain in the distinct minority.

VDC bills itself as a purely broadband-based cable-like service. I compare it to “video VOIP” (or voice-over-IP for the five readers unfamiliar with the acronym). In theory, a service like VDC could provide real competition to cable by letting you get an actual cable service (as opposed to video clips like YouTube or random episodes from iTunes or from some streaming site) — just like VOIP allows a company like Vonage or Sunrocket to offer voice if you have a broadband connection so you can discontinue phone service, saving a bundle (assuming your broadband provider does not make you buy a bundled service or interere with your VOIP packets).

So it is unsurprising that when a possible competitor like VDC emerges, cable uses its market power to try to squash it like a bug. In this case, cable companies have resurected one of the old reliable tricks from their early days: deny the would-be competitor needed programming. Here, Time Warner has refused to enter into negotiations to make CNN available to VDC. (We can expect that if this doesn’t do the trick, cable cos will move to the new fangled tricks — mess with the packets.)

But VDC has a few weapons in its arsenal. It has invoked a provision of the 1992 Cable Act called the “program access rule” that Congress passed to force cable operators to make programming available to would-be competitors like Direct Broadcast Satellite (DBS) providers. VDC has only two problems:

1) The complaint is being handled by the FCC’s usual cable enforcement staff which, as I have observed previously, does not exactly move on “internet time.”

2) The program access rules stop working (“sunset”) this October. So even if staff resolve the complaint in something approaching reasonable time, it may not do much good.

So is video VOIP dead before it even starts? Not necessarily. For a full explanation of what’s going on and how you (yes, you) can help make video VOIP a reality, see below . . . .

FCC Makes Cable Companies Obey Law! Activist Lawyer Faints In shock!

Harold January 12, 2007 - 3:16 pm January 12, 2007General, Tales of the Sausage Factory

Oh my stars! After endless years of delay, the FCC has has denied the various waiver requests from Comcast and the National Cable Telecommunications Association to delay the implementation of the set-top box interoperability. My stars! The cable industry will actually be required to comply with a law passed in 1996! I am positively weak from shock. Now if only we could get the FCC to resolve the horizontal cable ownership that’s been pending since 1992.

More below . . . .

FCC Last Call — Part I: Cable

Harold December 25, 2006 - 5:28 pm February 24, 2013Tales of the Sausage Factory

The FCC sure had a busy day a its last open meeting on December 20, 2006. In addition to the oral argument for the indecency cases in the 2nd Cir., the FCC also had its last open meeting of 2006. While it is impossible to provide a thorough analysis until the FCC releases the full text of the orders it adopted, below find some brief impressions based on the what we know so far about the FCC’s cable franchising order, cable rates report. Later, a post on the surprise Return of the Incredibly Awful Cyren Call Proposal.