By Jason Carmel Davis
October 16, 2008
Press & Guide Newspapers
http://www.pressandguide.com/stories/101508/loc_20081015006.shtml

DEARBORN - Federal Judge Victoria Roberts has ruled against Comcast's motion to dismiss the city of Dearborn's lawsuit regarding public, educational and government (PEG) access channels.

Instead, the city's lawsuit will continue, with the judge referring the key issues to the Federal Communi-cations Commission (FCC). The judge described the FCC as an expert on cable TV issues.

"We are viewing the judge's decision as a positive step for our case, since she is referring issues to the FCC, which is sympathetic to PEG channels," city of Dearborn Director of Public Information Mary Laundroche said Monday.

The judge's Oct. 3 ruling supports the city's efforts to keep public access channels readily available — and without additional expense — to Comcast customers.

Roberts said while the FCC considers the issues raised in Dearborn's lawsuit, Comcast must keep the PEG channels in their current location in the channel lineup so they are easy for customers to find.

The judge also said, pending the FCC review, Comcast must keep providing PEG channels in analog format so customers do not have to buy or rent additional equipment to view them in digital format.

The city had filed the lawsuit against Comcast in January after the company announced it would move PEG channels, including the city's government channel, CDTV, from their prime position on the channel lineup to numbers in the 900s.

But the city's franchise agreement with Comcast requires the cable company to seek a community's consent before moving its channel — changes in channel location are to be made only by "mutual agreement."

Comcast also said the PEG channels would be converted to digital, but digital channels can only be viewed if customers already have a television equipped to receive digital channels, or if they purchase or rent a converter box.

Comcast offered to provide a digital converter box to its customers free of charge for one year. But most households would require more than one converter box, and Comcast made no commitment past the one year offer for one box.

City officials have argued the change to digital would amount to a $4 a month increase for Comcast customers.

The city also argues that Comcast is required to provide PEG channels on its basic tier — the lowest cost service for its customers. The judge estimated that 15,000 to 50,000 homes will be affected if Comcast is allowed to make the change.

In the midst of the suit, Comcast officials said they remain focused on providing great service to customers.

"Comcast continues to work proactively with local communities across Michigan to meet their local access needs and are committed to offering our customers more high-definition choices, more video-on-demand programming and faster high-speed Internet service," said Patrick Paterno, Director of Communications for Comcast Michigan Region.

"We are currently in the process of reviewing and analyzing the order issued by the U.S. District Court of Eastern Michigan."

If residents cannot find CDTV or cannot receive it because it is digital, then the city cannot communicate effectively, officials said. Comcast wanted to move CDTV from channel 12 to channel 915.

Roberts also ruled that federal law, not state law, governs the issues raised in the city's lawsuit. The Court found that Michigan's Uniform Video Services Local Franchising Act was "preempted" or superseded by federal law.

Federal law is thought to be more favorable to the city's position, and city officials said view this part of the judge's ruling as especially significant.

The FCC is also known to be supportive of keeping PEG channels accessible to cable customers, an outlook that is in line with the city's position.

In September, before the U.S. House of Representatives' Committee on Appropriations, Subcommittee on Financial Services and General Government, the Chief of the Media Bureau of the FCC, Monica Shah Desai, set forth the FCC's position on the issue of PEG access channels.

First, Desai noted PEG programming on cable access channels, such as CDTV, is "a vital medium for local communities."

She explained that the "basic" cable service tier must include "at a minimum all local broadcast and any PEG programming required by the franchise to be carried on the basic tier."

Desai stated the FCC believes "placing PEG channels on any tier other than the basic tier may be a violation of the statute, which requires that PEG access programming be placed on the basic service tier."

Finally, in the statement, the FCC indicated "subjecting consumers to additional burdens to watch their PEG channels defeats the purpose of the basic service tier."