Ruling: Michigan Cities Can Still Prevent Migration Of PEG Channels
Decision's A Loss For Comcast; But Federal Judge Forwards Other Issues To FCC
By Multi Channel News Staff -- Multichannel News, 10/3/2008 11:13:00 AM
Michigan cities will be able to continue to prevent the migration of their public, educational and government channels into the 900-channel area at least until the Federal Communications Commission sets policy on the treatment of such channels, according to an Oct. 3 ruling by a federal court judge.
Judge Victoria Roberts of the U.S. District Court for the Eastern District of Michigan, Southern Division ruled in a dispute between cities, including Dearborn, Warren, Meridian and Bloomfield with Comcast Corp. The cities have specific language in community franchises that bar the movement of PEG channels without the prior permission of the local franchising authority; or language that bars extra charges to subscribers in order to receive PEG programming.
But last year, the state passed a franchising law, moving that authority to the state level and barring local agreements that had terms more onerous than the ones in the state law on PEG carriage. Citing that bill, Comcast notified cities it would digitize and move PEG channels in their communities.
The cities successfully blocked that move in January when they obtained a preliminary injunction from Judge Roberts.
Roberts' Friday ruling came on Comcast’s motion to dismiss the action. But the cable operator was not successful. In the part of the motion Roberts did rule on, she said that when there is a conflict between state and federal law, the state is preempted and federal law specifies that local franchisees can regulate PEG channels.
However, many other issues raised in the suit are not addressed by federal law, she opined.
Congress wrote the federal Cable Act in 1996 and lawmakers did not anticipate technological questions posed now by the existence of analog and digital platforms. The technical issues are beyond the expertise of judges, she wrote, indicating she will refer several issues to the FCC for a ruling, such as whether an operator can require payment for equipment to view PEG, whether such charges are discriminatory and whether cities can command basic tier placement in areas subject to effective competition.
The judge intends to forward the questions to the FCC by Oct. 17.
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