Stogner had been pushing the FCC for a response to the complaint, which was filed in March of last year, but it was not the response he was looking for. He said he wants the commission to reconsider the decision.
According to a copy of the order Stogner supplied to B&C, the FCC concluded that because Cox's New Orleans system has more than 50% digital subscribership, it does not violate the leased-access rules.
"The commission gave the cable operator the discretion to place leased-access programming on any tier with a subscriber penetration of more than 50%," the order read. "Although we acknowledged that cable operators may have the incentive to place competitive leased-access programming on 'unfavorable tiers,' we determined that the 50% threshold requirement would adequately protect the interests of leased-access programmers while giving cable operators the flexibility to determine the 'marketing mix of different tiers.'"
The order continued, "In the instant case, RETV does not refute Cox's assertion that its digital tier has a FC subscriber penetration of more than 50%. Therefore, we agree with Cox that assignment of RETV's programming to the digital tier is not a violation of commission leased-access rules."
Stogner begged to differ. "This is an outrageous and dumbfounding ruling," he said. "[The law] clearly says leased access is to be on a tier used by most subscribers ... If the FCC prevails with this ruling, operators will immediately begin shifting leased access to digital and greatly cripple our ability to attract advertisers."
Democratic legislators have been paying close attention to the affect of cable's move to digital on PEG (public, educational and government) channels, particularly after the issue cropped up in the home territory of House Energy & Commerce Committee chairman John Dingell (D-Mich.). PEG and leased-access channels are similar in that cable operators are required to set aside capacity to carry them.