Bush Official Opposes Charter Appeal


The U.S. Supreme Court should avoid a cable-franchise-transfer dispute between Charter Communications Inc. and Santa Cruz County, Calif., until more lower courts have confronted similar disputes, according to a Bush administration official.

U.S. Solicitor General Theodore B. Olson, asked by the high court to file a brief, argued that although the Charter-Santa Cruz case involved important cable-franchising issues worthy of court review at some point, "It would not be inappropriate to postpone such review until the issues can be fleshed out by the courts of appeals in future cases."

Olson, in a Nov. 19 filing with the court, said Charter's appeal should be denied.

A key legal question in the case centers on the extent to which demands placed on cable companies by local governments during a transfer proceeding are considered reasonable though probably illegal under the 1984 Cable Act.

Charter and Santa Cruz clashed when county decided to give extra close scrutiny to Microsoft Corp. billionaire Paul Allen's purchase of the company. Charter sued the county when the county made exorbitant demands, such as a $500,000 payment, in order to obtain transfer approval.

A lower court found in late 1998 that Santa Cruz violated several provisions of federal cable law.

However, Santa Cruz won on appeal, with a panel of the U.S. Court of Appeals holding that the county acted reasonably in attempting to determine Allen's real financial situation and to extract a promise from Charter to maintain a pre-existing rate freeze.

In his Nov. 19 brief, Olson lamented that the Ninth Circuit's upholding of the transfer denial "invites circumvention of federal law by local franchising authorities and would fail to vindicate important federal rights."

According to the Supreme Court's Web page (www.supremecourtus.gov), the justices are scheduled to decide whether to take the case at their Jan. 9 conference.

The National Cable & Telecommunications Association disagreed with Olson’s assessment.

"The vast majority of the Solicitor General brief agreed with the cable-industry view of the importance of the case and the serious error made by the appeals court," NCTA senior vice president of law and regulatory affairs Daniel Brenner said in a prepared statement.

"We strongly disagree with the recommendation of the Solicitor General and hope that the Supreme Court adopts the substantial arguments made in the brief for review," he added.