Lack of FCC Action on PEG Filings Cited in New Petition

Jonathan Make, Communications Daily:

Lack of final FCC action on petitions about how pay-TV providers handle public, educational and government (PEG) channels has resulted in additional cable operators’ moving the networks to digital tiers before all other channels have been switched, representatives of the programmers told us. That the FCC hasn’t disposed of three petitions before it since February 2009 on whether cable operators must treat the programmers the same as commercial ones was cited in a new, emergency petition filed late Monday with the commission. In it, a Texas school district asked the commission to temporarily halt such PEG channel moves by AT&T and cable providers.

FCC action on the long-pending petitions didn’t seem imminent before the new request was filed, agency and industry officials said. The commission may have held off (CD Nov 24 p6) while Comcast worked out the dispute that sparked one of the petitions. AT&T, the subject of the other two petitions, hasn’t resolved those matters, PEG representatives said. A Media Bureau spokeswoman declined to comment on any of the petitions.

Time Warner Cable’s plan to put all PEG channels on its Texas systems on the digital tier starting Oct. 1 is the latest “discrimination” against such programmers, the McAllen Independent School District said in the emergency petition for temporary standstill. To keep getting PEG channels including the district’s, subscribers without newer DTV-capable sets must request the networks, pay extra to get a converter box and also pay more for the underlying service, the complainant said. “The School District has a special interest in maintaining the status quo. But it is not alone in this regard. Absent Commission action, operators can be expected to discriminate against PEG channels in many states.”

Cable operators know “that if PEG channels can be delivered in a manner that makes it more difficult or expensive to receive the channels, they can recapture capacity for their own commercial purposes, and undercut one of the central public interest benefits provided by the Cable Act,” the district said. It sought a standstill order requiring cable operators to carry PEG the same way they do TV stations to “protect” Texas municipalities and ”prevent operators from taking advantage of the Commission’s delay.” An NCTA spokesman declined to comment.

The group has told the FCC that the 2009 petitions should be rejected and that going all-digital lets cable systems free up bandwidth.

Time Warner Cable had just gotten a copy of the petition and was reviewing it late Tuesday, a spokesman said. It’s unclear why the 2009 petitions that led to the current one remain unresolved at the commission, said municipal lawyer Tim Lay of Spiegel & McDiarmid. The inaction “sends a message that if you need to free up some capacity, it’s there, go after it” from PEG, said Lay, whose firm represented the Alliance for Community Media in filing one of the 2009 petitions. “Comcast has made some exceptions to that in its Michigan settlement” and may be careful in digitizing PEG elsewhere as it seeks regulatory approval for its planned purchase of control of NBC Universal, he added.

PEG issues haven’t been on the front burner at the FCC, especially since the 2009 petition that drew the most internal interest, against Comcast, was settled, an agency official said. It’s hard to tell if the school district’s request will bring more attention within the regulator at the issue and action on PEG, agency and industry officials said. “We’re looking at complete inaction for almost two years,” said Executive Director Bunnie Riedel of American Community Television. “Given the circumstances, I don’t hold a lot of hope that this petition by the school district is going to sway the FCC.” But the district probably holds more sway than other PEG programmers with its arguments before the commission, she said.

“The concern is that silence” at the FCC on the 2009 requests “is being taken as commission approval of operators doing whatever they want with PEG,” said municipal lawyer Joseph Van Eaton of Miller & Van Eaton, representing the district. “When the commission has a petition that’s pending for 19 months and has done nothing, it looks like it’s easy to take a shot at PEG” and “the more PEG dies, the less it matters what the commission does, so now is the time to act.” Van Eaton said the school district would need several thousand set-top boxes to get its own programming should Time Warner Cable go through with its digitization plans.

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