Judge Voids San Jose Complaint

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Comcast Corp. can’t challenge local public, educational and access requirements it considers onerous until a city actually formalizes those franchise demands, a U.S. court in California has ruled.

U.S. District Magistrate Judge Richard Seeborg dismissed the operator’s challenge against San Jose, Calif. Comcast sued last year, claiming that proposed elements of its franchise for the Silicon Valley city — and a preliminary denial — violated state and federal law.

The judge found on Aug. 23 that the city has taken all the steps required by the federal Cable Act in its formal renewal process.

A challenge to the city’s action would be appropriate only after the process has concluded, the judge said.

The damage Comcast claims now is only “hypothetical and abstract,” according to the judge, adding the company must wait until there is a “definite and concrete” controversy.

Comcast officials said it’s important to note the ruling “simply indicates that the time is not right to raise the issues” contained in its suit.

“Comcast will continue to object to San Jose’s attempt to impose illegal conditions on our right to serve our customers in the city, in whatever forum or forums necessary,” said Western region vice president of communications Andrew Johnson.

Local regulators, who see Comcast’s suit as a major step toward eliminating PEG and institutional network requirements from future renewals, have closely watched the case. Officials believe the cable company wants to reclaim that network real estate for profitable advanced services while relegating local programming to the video-on-demand queue.

San Jose completed a needs assessment in 2001 and discovered “significant interest” in increased PEG programming, said city public outreach manager Tom Manheim,.

As a result, the city created a refranchising proposal that calls for five PEG channels. The city currently has four local channels.

The pact also contained trigger mechanisms that could allow the city to activate up to 10 PEG services.

The needs assessment also indicated the local schools and the county government were interested in participating in an institutional network.

Manheim said that element of the refranchising proposal never got to the point of determining who would pay for the i-net, and how much it would cost.

The city claims Comcast balked at any i-net planning.

Comcast said in its complaint that pending access and institutional-network demands have had a “chilling effect” on the company’s programming plans, and therefore violate Comcast’s First Amendment rights.

But the judge did not embrace the company’s argument.

San Jose issued a preliminary denial in January 2003 but agreed to begin an administrative hearing, as required by the federal law governing formal refranchise proceedings.

In the midst of that process, Comcast filed suit for declaratory and injunctive relief, claiming the city’s action violated its First and Fourteenth Amendment rights under the U.S. Constitution, as well as the federal Cable Act.

“Clearly the judge thinks there is no reason not to go forward on the formal process,” said Manheim. There have been no formal or informal discussions between the city and company for months.

San Jose will go back to the hearing officer, who will first determine which information the two parties must share.

Manheim said the first real hearing is “some ways off.”

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