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from: Free Press

Legal battles stall Comcast's plan to move public access channels
January 14, 2008
By DAVID ASHENFELTER
FREE PRESS STAFF WRITER

A Macomb County judge issued a temporary order late today blocking Comcast's plans to move community access channels higher up the dial and out of the reach of thousands of Michigan cable subscribers with analog televisions in Warren and possibly the entire state.

The order could affect some 400,000 Comcast customers statewide. The cable company planned Tuesday to move PEG -- public, educational and governmental access -- access channels across the state into the 900-level digital range, requiring subscribers with analog televisions to buy digital cable-ready televisions or rent or buy a digital converter box for each set.

The company, which had offered to provide customers with a free converter box -- a $4-a-month value -- for one year wanted to move the PEG channels to free up bandwidth so it could offer other services, including high definition stations, to so-called high-end customers.

"I'm elated -- really elated," Assistant City Attorney Mary Michaels said tonight after obtaining a temporary restraining order from Macomb County Chief Circuit Judge David Viviano. She filed a suit late today that accused Comcast of violating a franchise agreement which prohibits Comcast from moving public access channels without city approval. She said she filed the suit after a federal judge in Detroit hadn't made a ruling in a similar lawsuit filed by Dearborn and Meridian Township in suburban Lansing.

Viviano scheduled a hearing next Tuesday to let Michaels and Comcast lawyers debate whether to delay Comcast's plans until the lawsuit is resolved.

Michaels said the order Viviano signed doesn’t say it's Warren specific, so it will be up to the judge to decide whether it applies statewide.

Comcast said the Warren lawsuit is as baseless as the lawsuit filed by Dearborn and Meridian Township. But he declined to say how Viviano's order would affect Comcast's plans.

"We believe this suit is without merit," Comcast spokesman Patrick Paterno said.

U.S. District Judge Victoria Roberts said she would issue a decision today after a four-hour often confusing and sometimes contentious hearing in Detroit where she repeatedly chastised Comcast's lawyer, Robert Scott of Washington D.C., for failing to abide by the court’s civility rule.

Dearborn and Meridian Township accused Comcast in a lawsuit Friday of violating federal and state law.

"These aren't channels they own," the communities' lawyer, Joe Van Eaton of Washington D.C, told Roberts. "They're the communities' channels."

He said Comcast made the decision unilaterally without approval from the communities, a violation of state and federal law. He said the decision would deprive poor people, the elderly and others who can only afford basic cable service, forcing them to buy new equipment to keep up with community news. He said the move would also deprive schools and communities with a valuable tool of communicating with residents.

Comcast lawyer Robert Scott of Washington, D.C., disputed that Comcast's move would violate federal or state law, saying there are no such statutes allowing communities dictate where cable providers provide PEG service. He said the Michigan Legislature did away with that requirement in 2006.

He also said Comcast, unlike its competitors, has provided free cable service to public schools in Michigan and that Comcast competitors don’t carry PEG programming.

Scott also said the communities waited too long to ask for the injunction.

"The cities have had 60 days and waited 55 before coming to court to stop this activity," he said. He said it’s unfair to present a judge with such complicated legal and technical issues on such short notice.

Comcast employees who testified at Monday’s hearing said only about 12,000 of its 400,000 nondigital customers have signed up for a free converter box, but said there are enough boxes for anyone who wants one.

Van Eaton countered that Comcast basic customers have received conflicting stories from company representatives about whether they must pay for the box and installation. Comcast employees testified that they had retrained employees to make sure the proper message got to customers.

Comcast said in court papers that the PEG switch is part of an industrywide conversion from analog televisions to digital.

Although Congress has mandated that broadcasters convert from analog to digital signals in February 2009, Comcast and other cable companies can continue providing service to analog customers. Comcast said it planned to do so for the time being.

Contact DAVID ASHENFELTER at 313-223-4490 or dashenfelter@freepress.com.