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FCC Holds Off Deciding PEG Petitions Against AT&T, Comcast

The FCC is continuing to hold off deciding on three petitions against AT&T and Comcast over the companies’ digital carriage of public, education and government (PEG) channels, several commission and industry officials said. The petitions from December and January by towns and municipal groups ask the commission to require pay-TV providers to treat PEG channels the same as others. The petitions are among the media items that could get FCC approval this or next quarter, and in the past some officials there have sought action, but the regulator for now is taking a wait-and-see approach, said commission officials and communications lawyers.

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But legislators and communities continue to ask the commission to act now (CD Nov 23 p10). Friday, Rep. Janice Schakowsky, D-Ill., asked FCC Chairman Julius Genachowski to “grant the PEG Petitions as soon as possible.” If that doesn’t happen, “other operators might also adopt approaches that marginalize or effectively eliminate PEG access,” wrote the House Commerce Committee member. Other cable operators may also face similar issues as AT&T and Comcast in their treatment of the channels, a commission official said.

Media Bureau and eighth-floor officials are waiting before acting to see if Comcast settles the court case that drew a petition by Dearborn, Mich., and three other municipalities in that state, the commission officials and outside lawyers said. Comcast earlier this month said in court and commission filings that it would continue to carry PEG channels in analog format until it converts all systems in an area to digital or gets approval from the local franchising authority to move the programming to digital. The possibility of a settlement between the cities and cable operator have reduced the inclination of commission officials to push now for resolution of the petition, FCC and industry officials said. A Comcast spokeswoman declined to comment.

Municipalities could meet with the cable operator as soon as next week to discuss the company’s new plans, said Miller Van Eaton attorney Joseph Van Eaton, representing Dearborn. But some of the cities he represents are irked that they found out about the plans as late as Monday, days after Comcast told the regulator and U.S. District Judge Victoria Roberts about them, he said. “Comcast is trying to convince everyone they are trying to move forward with a serious settlement,” but so far the cities don’t see it that way, Van Eaton said. “So far they're ignoring the concerns we've raised with them and they're trying to settle it by going to the agency and going to the court.” Last week, Roberts set a Jan. 7 status conference on the case, Dearborn et al. v. Comcast, which she earlier referred to the FCC for its guidance.

Meanwhile, some commission officials are wary of wading into what may be bigger policy issues raised by petitions by the Alliance for Community Media and city of Lansing, Mich., against AT&T’s distribution of PEG channels, said FCC and industry officials. Those petitions raise the issue of whether AT&T’s U-verse pay-TV service is a cable service, as petitioners contend, or an information service as the company has argued, they said. A company spokeswoman declined to comment, as did a bureau spokeswoman.

The commission need not rule on what type of service U- verse is to act on the petition, said John Pestle of the Varnum law firm, representing Dearborn. “Obviously we think they are a cable company,” he said. “But we understand if it’s a bridge they may not want to cross at this time.” The petitioner has “stressed to the commission that they can address these issues promptly and favorably without having to address the question of whether AT&T is a cable company,” Pestle added.

“We think that the matter is ripe for commission decision,” said Spiegel & McDiarmid attorney James Horwood, representing the Alliance. “The longer we go, the more severe the problem becomes, and access centers are being shut down, many of which wouldn’t be shut down if we had a resolution.” He was referring to production centers for PEG programming, also hit by reductions in budgets. Now that AT&T has statewide certificates to sell video service in all or most states where it provides U-verse TV, “it shouldn’t be a real problem to them about whether or not it’s a cable a service,” Horwood said. Because AT&T offers PEG networks as sub-channels on channel 99, they can’t be recorded by DVRs and other devices and it takes much longer for U-verse subscribers to access them than commercial channels, he said. “It’s still a somewhat degraded service in terms of latency and channel switching. They got it down from over a minute to 8 seconds -- but 8 seconds is still an eternity to people who are channel-surfing.”