Court Stays Leased- Access Rule Change
by John Eggerton -- Broadcasting & Cable, 5/25/2008 8:00:00 PM
Saying that the cable industry has shown "some likelihood" of suffering irreparable harm and has the potential for winning on its merits, the Sixth Circuit Court of Appeals stayed enforcement of the Federal Communications Commission's leased-access-rule changes until the National Cable & Telecommunications Association can make its case against them in court.
The FCC voted in November to lower the rates cable operators could charge leased-access programmers and speed up the complaint process. With the majority arguing that the change would lead to greater program diversity, the commission released the order in February.
The NCTA filed suit against the new rules March 13, calling the decision arbitrary and capricious and a violation of procedure, as well as an "unlawful burden on speech" (First Amendment) and an unconstitutional "uncompensated taking of private property" (Fifth Amendment).
C-SPAN, TV One, Discovery Communications and A&E Television Networks, which joined the NCTA in the challenge, told the court that without a stay, the changes would cause "irreparable harm" and "infringe on cable programmers' First Amendment rights."
The FCC opposed the stay, disputing the merits of the argument and saying the NCTA had not exhausted its administrative remedies. The court disagreed.
The NCTA also sought a stay of the rules at the FCC, but the commission has not ruled on it and Chairman Kevin Martin indicated he did not favor it.
Charlie Stogner of the Leased Access Programmers Association, who had been trying to find out what rates he would have to pay operators, said he was "disappointed" by the decision.
This court ruling definately hurts my attemps to bring quality local programming to central Oklahoma towns. The new rules set forth gave hope of a better tomarrow for those of us who have financially struggled to provide our communities with local television content. This stay of execution means the financial harm continues for us who are entitled to better treatment as a customer of the cable companies, not to mention pro-longing the fulfillment of the Congressional desire for local voices being heard throughout the communities of America.
Daniel Mark - 5/26/2008 2:52:00 PM EDT
Is it GOVERMENT BY THE PEOPLE FOR THE PEOPLE or is it GOVERMENT FOR BIG BUSINESS BY BIG BUSINESS?
WASHINGTON (AP) -- The National Cable & Telecommunications Association, the cable industry's main trade group, spent about $3.3 million in the first quarter to lobby on Internet regulation and other cable issues. HOW DO WE COMPETE? The cable act of 1984 enacted by congress included leased access provisions to insure a diversity of local originated programming. Leased access rules required MSO's to set aside 15% of available channels for leased access use. Today according to cables records less than 3% is being utilized; independent studies find that the figure is really more like 1%
George Scott Smith - 5/24/2008 5:35:00 PM EDT
independent studies find that the figure is really more like 1%. Now common sense tells me that after 24 years, lower rates and faster intervention by the FCC when fighting cable tactics might help accomplish what congress intended 24 years ago. I will be asking my elected officials this question and also why the FCC can write a law and order stating that the effective date would be 90 days after published in the Federal Register. (pub. Feb 28,2008) Now believing my government I use these rates to prepare a business plan including the FCC''s own documents and the Federal Register in my plan. This plan was presented to my bank in good faith to obtain a loan for my leased access project.(My 3rd attempt) My plan was to be on the air May 1st 2008. This naive citizen did not realize that I was in for the David & Goliath fight of my life. Charter Cables corporate leased access coordinator states 30 days after signed application we would be allowed on the air.(May 25th,2008)Now I am told that I wont be on by the 1st of June. Crap like she was just made aware of a LIST of approved venders that can work on their property, and of course the company I submitted 2 weeks before to install the microwave is not on this newly discovered list. I do not get to see the list. She will get me a bid from the company they use 10 hours away. GIVE ME A BREAK SEND A CREW & TRUCK 700 MILES to install a less than 5 pound antenna 60 feet up on the tower. Plus now she comes up with other issues, stall tactics nothing more. I fail to believe this is what our elected officials intended when writing the leased access provisions. To me this is... GOVERMENT BY BIG MONEY FOR BIGGER MONEY! A sad day indeed for us little fish.
George Scott Smith - 5/24/2008 5:29:00 PM EDT
I am a "would be" leased access programmer in the Seattle, WA area. I am a would be programmer if the cable system (Comcast) did not have a virtual monopoly on the cable service within a 11 county area with a population of over 4 million people. Comcast has consolidated it''s headends from several different systems and has arbitrarily limited the leased access channel to one serving the entire metro area. I can not according to Comcast, limit my programming to a specific area such as a city or county or area that is already served by a PEG channel. I can only run leased access programming over the entire system at a cost of over $300k a month. This effectively eliminates local programming. This effectively eliminates the opportunity to provide local programming to specific communities so the residents would have their own voice and being able to find out what is going on in their community that affects their daily lives. The FCC is high on "localism", yet here the cable company blocks that opportunity. For what ?? To line the pockets of their executives and shareholders. Public interest be damn, Congress be damn. This is not what Congress had in mind when they established the leased access rules to promote diversity of programming. Local programming is the greatest use of leased access, but here the cable company blocks it. I am sure they knew what they were doing. It is clear that the cable companies do not like leased access, as they can not control it. So they come up with effective ways to prevent its use. There is very little use of the leased access channel and one would wonder why. All we get on the leased access channel is the Home Shopping Network, placed there by Comcast. Who suffers from this process ?? The public. The Commission has tried to come up with a solution to the limited use of leased access rules, by adopting new rules to encourage use of what should already be out there. This included a more realistic rate that leased access programmers had to pay. With the new rates, the use of leased access would be more economically viable and programming of interest and value to a wide variety of the public (a lot of which are being ignored or underrepresented)can be presented. This would be to the benefit of the public. Look at what has happen to the radio industry, since consolidation has occured. The big corporation have taken over. Individual localism has been thrown out the door and it has been reduced to a cookie cutter "voice tracked" homogenous service, that has severely reduced the individuality and uniqueness of various markets. The public in several hearings accross the country told the FCC that they are sick and tired of big corporate media. The FCC was recently rebuked by the Senate with respect to the FCC allowing newspaper and TV station crossownership in certain markets. The Senate made them reverse that ruling. Here are some of the comments of Commissioner Adelstein in regards to the overturn of the ruling. "This unequivocal, bipartisan rebuke ofthe FCC is a wake-up call for us to serve the public rather than the media giants we oversee."
Here are the comments of Commissioner Copps:
"The Senate spoke for a huge majority of Americans last night by voting to overturn the flawed FCC decision gutting our long-standing ban on newspaper broadcast cross-ownership. With courageous leaders like Senator Byron Dorgan,the Senate has struck a blow for localism and diversity in a media environment
crying out for more of both."
So why is the court "staying" the FCC leased access rules which clearly are designed to benefit the public?
With the decision the court has put on hold a number of rule changes designed to improve the use of leased access. Now mine and a lot of other leased access programmers plans are on hold. The public is the clear loser here and the cable giant''s are the winners. There arguements in that they would suffer "irreparable harm" is baseless and without merit. They had to set aside a certain amount of channels for leased access under the current rules. Now, the actual use of them, should come as no suprise.
That the rates are too low, is without merit as they pay other programmers for their programming. Here they are getting income for their channels. They seen fit to jack up the rates of cable to pay the programmers they have, mostly all who have ties to the cable companies.
Nowhere, in the stay ruling did it mention about the leased access programmers and low power TV stations who will actually incur substansial harm. I know of at leased one access programmer who had to go out of business because the current rate is to high. I know of several LPTV stations who are awaiting the new rates to gain access to cable carriage, where the current rates are unaffordable.
Well I for one "Am mad as hell and am not going to take it anymore" I am calling for the break-up of the big cable companies into something that will serve the public, just not the corporate bottom line." The greed of big business everywhere now has America teetering on the edge of virtual collaspe" We must do something about it now. Write your congressman or senator. Let''s make our voices heard.
Combonte Media Group
Duane J. Polich - 5/24/2008 11:28:00 AM EDT
The current rates are based on about 40 cents per subscriber. RIDICULOUS!!! That's about $3,500 a month in my LITTLE town. Oh, and by the way, that doesn't include the INSURANCE and unnecessary TECHNICAL fees CABLE companies want to force upon us on top off their RIDICULOUS prices. Its no wonder why the national average is only 0.7% of a single leased access channel actually being used when CONGRESS mandates cable companies make available up to 15% of their channel lineup available.
Now they are worried about the immediate influx of programmers coming in, when in fact Cable doesn't provide anywhere near the amount of local programming Congress intended. If the high power televisions stations had to pay that, they'd go bankrupt too! That's why no one can afford a FULL time channel and most can only buy a couple hours here and there. This "Stay" may have just sealed the nail in our coffin.
The VIEWERS in our local town are the real LOSERS here. Believe me CABLE isn't hurting!!! But don't you know someone got paid off BIG time to keep this from going through!!!
AMERICA you need to be SCREAMING for your right to better programming and quit putting up with the crap only the cable companies want you to watch!! Truly-local programming is where it's at.
Ian Reynolds - 5/24/2008 11:27:00 AM EDT
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