Public Access Channels in Limbo, Face More Digitization, PEG Groups Say

Digitization puts PEG at a disadvantage to TV stations and commercial cable networks, which in some cases remain on the analog tier, a municipal lawyer, a PEG advocate and a councilman in a city where PEG channels were digitized by Cox, said in interviews this week. They said that for cable subscribers to continue to watch PEG channels after digitization, they must have a digital-ready TV or get a set-top box, which after a period in which the device is free, must be leased from the operator. Cox and other cable operators have said digitization frees up bandwidth for newer services including more HD channels and VOD shows and broadband at faster speeds (CD March 28 p13). A Cox spokesman said the company continues to provide the channels in digital-only and that it is adhering to a contract with Macon, Ga..

The Media Bureau appears reluctant to act on the two PEG petitions against AT&T, filed by the Alliance for Community Media (ACM) and by Lansing, Mich., because those pleadings go to the heart of whether U-verse is considered a cable service for franchising reasons, said commission and industry officials watching the proceeding. AT&T has said that U-verse, as an IPTV service, doesn’t use some of the same technology used by cable operators and need not get municipal approval.

AT&T is “committed to carrying” PEG channels via U-verse and has “deployed the service in hundreds of cities with hundreds of PEG channels,” said a company spokesman. “As you can see from our video demonstration, our PEG programming can be easily and quickly accessible, is high quality and offers many benefits.” The video is at http://xrl.us/bjghx6.

A third petition on PEG, by Dearborn, Mich., against Comcast, has been settled, so the dispute has been made moot, noted municipal lawyer James Horwood of Spiegel & McDiarmid. The bureau had dismissed the complaint, at the parties’ request. Spiegel & McDiarmid represents ACM on its petition against AT&T.

Petition Denial Better than ‘Limbo'

The bureau also doesn’t seem poised to act on a recent request by the city of Macon that it act on ACM’s petition after Cox didn’t follow state law when it moved three PEG channels in the city to the digital tier without municipal approval, a commission official said. There may be concern among some bureau staffers that commission action could conflict with Georgia’s purview over the matter, the official said. The bureau is looking into what happened in Macon, and asked Cox executives to brief staffers, the official said.

Cox follows state law, an executive said at the meeting, according to an ex parte filing. Because Georgia may not be able to enforce local franchise agreements, and Macon’s deal with Cox hadn’t been set to expire until the end of 2017, “if the citizens of Macon are to be protected, the FCC must act,” the city said in a filing, also in docket 09-13. “Our state-issued franchise does not specifically require PEG channels” in Macon, said a Cox spokesman. “However, we have legacy PEG obligations in Macon,” where the cable operator “must continue to offer them until the legacy, local franchises expire,” he added. “There are no channel placement requirements for PEG programming."

Career FCC staffers also may believe that acting on the petitions against AT&T could hurt PEG programmers, if the commission rejects the requests, agency and industry officials said. There’s a distinct possibility that, if the FCC acts it might deny the petitions because they do not make a strong enough case, they said. A bureau spokeswoman had no comment.

PEG officials want an FCC ruling, even if it goes against the programmers, they said. They said a negative ruling could be appealed, could lead advocates for public access channels to press for congressional legislation to require cable operators to treat PEG and commercial channels the same, or could let the programmers press their cases at the state level. “We're better off having a decision that goes against us, rather than being in limbo,” said Horwood. “We've got state laws being passed that we think are inconsistent” in that they give cable providers the ability to get a statewide certificate to sell TV and to bypass the municipal franchising process, he said. Should the FCC “decide it incorrectly, we can either appeal or seek congressional relief,” Horwood said.

Cox’s PEG digitization in Macon drew constituent complaints, said Councilman Tom Ellington, who’s said he’s been approached by residents wanting to share their gripes. The city authorized the Democrat to spearhead efforts to get the FCC to act. He agrees with what a Cox official told him, that “digital is the wave of the future,” but said that non-PEG channels shouldn’t get “more favorable treatment.” The local matter is within the commission’s jurisdiction, and “after over 25 months, it is time for the FCC to act,” Ellington said of the pending petitions. “If the FCC had acted in a timely manner, we might not have found ourselves in this position today.”

Macon “is an unfortunate example” of a trend by cable operators, after AT&T moved PEG channels “to digital Siberia,” and Cox “has stepped in and has been emboldened,” said ACM Executive Director Sylvia Strobel. “We need a decision, one way or the other” by the FCC, “even if they rule against us,” she said: “Sitting in limbo is actually doing us more harm than ruling against us,” because public access backers need a commission ruling before taking other action.