A small Rhode Island cable operator has gone to court in hopes of scuttling a planned overbuild by Cox Communications Inc., the state's dominant MSO.
On July 23, Full Channel TV asked a Rhode Island Superior Court to overturn a hearing examiner's ruling that would allow Cox to compete for 11,500 cable viewers in the towns of Barrington, Bristol and Warren, or Area 5, as designated by the state.
In seeking to overturn the decision, Full Channel argued that examiner Thomas F. Ahern ignored the incumbent's statutory rights in issuing a ruling that was "arbitrary and capricious."
Full Channel claimed that Ahern's decision "arbitrarily" allows Cox to skirt state cable regulations that require an operator to build and maintain an institutional/industrial network that operates separately from its commercial network.
The operator also said Ahern did not consider a statute prohibiting any overbuilder from entering the market under terms more favorable or less burdensome than those imposed on the incumbent.
Full Channel also opposes Cox's entry into the market on grounds that the Atlanta-based MSO would not be required to offer the same number of public, educational and governmental channels in Area 5 as it delivers.
"Competition is a red herring," Full Channel president John Donofrio said in a statement. "I've always been in favor of competition, but granting Cox the right to overbuild without properly applying the law, and allowing them to not follow the same rules as Full Channel, and as the original companies followed in the beginning, would be unfair and wrong."
Full Channel wants the decision reversed or remanded to Ahern for further review.
Donofrio said he would seek a restraining order if the DPUC attempts to issue a compliance certificate to Cox before the court renders a final decision.
But the compliance certificate has already been issued and accepted by Cox, said Eric Palazzo, assistant administrator for the DPUC's cable unit.
"As per the examiner's order, the certificate has been issued," Palazzo said.
The DPUC responded by filing a motion with the court seeking to have Full Channel's appeal dismissed, or remanded to the agency.
Cox officials said they were not surprised by the appeal, noting that it was "consistent with Mr. Donofrio's efforts to deny competition in Bristol County."
"We believe [the appeal] is without merit," said Cox New England region vice president of government and public affairs John Wolfe. "The state's decision is well grounded in the facts, and is in the public interest."