A Federal Court Stops Comcast's Plan to Exile Public Access Channels to Cable Siberia - At Least for Now

(January 16, 2008) - The large cable companies that sell the public its "basic tier" and premium TV services have never liked "PEG" (public, educational, and governmental) channels. But this week in Michigan, a federal judge stopped the biggest of the cable giants, Comcast, from reassigning PEG channels from the basic tier to high-numbered, difficult-to-find spaces in the digital spectrum, and requiring customers to buy new digital converters in order to view them.

PEG channel access is often required by the franchising agreements between municipalities and cable companies - the same agreements that give the companies monopoly power to provide service, set rates, and decide what programs will be available on almost all the other channels on the TV dial. (The only other exception are a few channels that, under federal law, must be set aside for commercial "leased access.")

The court challenge to Comcast's plan was brought by two Michigan towns, Dearborn and Meridian. They claimed that the plan discriminated against PEG channels in violation of federal law and the local franchising agreements, and that it would cost PEG channels - including those used by public school districts, community colleges, and the state university system - a large part of their audience. In addition, although Comcast was offering subscribers one free converter box for a year in order to ease the transition, each TV set in the home needs its own box, and subscribers would have to pay for all the boxes after the year was up.

In her January 14 decision, Judge Victoria Roberts of the U.S. District Court agreed with the plaintiffs that the additional costs were discriminatory, in probable violation of federal law, although moving the location of PEG channels in itself probably would be permissible. Because of the likely harm to the towns' PEG channels, she prohibited Comcast from implementing its plan until the lawsuit is finally resolved.

Comcast's plan is part of a larger effort to eliminate or marginalize PEG access. The company argued that recent legislation in Michigan "preempted" the requirements of federal law by providing an alternative to local cable franchising. But Judge Roberts pointed out that federal law necessarily preempts state law on the same subject, and federal law requires that PEG channels be made available to all community members "on a nondiscriminatory basis," and "at the lowest reasonable rate."

Deborah Guthrie, the Meridian Township cable coordinator, told the Detroit Free Press that Comcast’s plan would cost basic subscribers $4-$5 per month per television for access boxes, and would deprive many lower-income subscribers, especially senior citizens living on fixed incomes, of public, educational and government-access channels.

According to Multichannel News, "Pressure had been building on Comcast’s PEG moves for several weeks." Congressman Edward Markey scheduled a January 29 hearing on "PEG Services in the Digital TV Age." Rep. John Dingell of Michigan commended the court’s decision to block Comcast’s plan because it "would have forced many Michigan consumers to pay additional fees to rent set-top boxes to receive the high-quality educational programming they are currently guaranteed with basic cable service." Another Michigan congressman, Bart Stupak, agreed, saying: “PEG channels serve an essential role in local communities and I was pleased to see the court block an effort to make these channels available only to digital cable subscribers. As media consolidation continues to increase, PEG channels become even more vital in providing a much needed local voice and diversity of opinion.”

Update, Dec. 11, 2008: Judge Roberts has asked the FCC for its expert opinion on the PEG access issue; see http://www.multichannel.com/article/CA6621660.html for details.

For a complete chronology of the Comcast/PEG controversy, see http://saveaccess.org/aggregator/sources/12

For legal documents in the case, see the Miller Van Eaton law firm website .

See also Harold Feld's commentary at on the Free Press website.

For background on PEG access and threats it faces in the current regulatory environment, see FEPP's Fact Sheets on Media Democracy, Survey on the Legal Needs of Media Reform Organizations, and Comments to the FCC in the Matter of Broadcast Localism.