Posted By: Joesph Van Eaton, Partner, Miller & Van Eaton, PLLC
AT&T’s entry into the video market has not been smooth. Unlike Verizon, which is building fiber to the home, AT&T is by and large upgrading its old copper wire system so that it can be used to provide video. Its design required it to place refrigerator-sized cabinets throughout communities – a move that forced many communities to develop new siting standards (it didn’t help that some of the cabinets exploded).
Now two challenges have been filed at the Federal Communications Commission, claiming that manner in which AT&T provides public, educational and government access violates the law. One challenge was filed by the City of Lansing, Michigan. A more detailed challenge was filed by a consortium of organizations that promote access, community colleges, local governments, and local government organizations. The lead petitioner is the Alliance for Community Media (“ACM”). The petition was filed by the law firm of Spiegel & McDiarmid.
As the ACM petition points out, AT&T does not really provide PEG channels. It provides what it calls a PEG “application” or “platform.” The PEG application does not function like a normal, commercial channel on the AT&T system: AT&T cannot pass through closed captioning for example. One of the reasons some community colleges joined in the FCC petition was because they are required to deliver programming with closed captioning. AT&T won’t deliver secondary audio signals (used to deliver programming in a second language) on PEG channels. A viewer cannot surf between commercial and PEG channels; PEG channels can’t be recorded while viewing another channel. There are significant quality issues as well. The FCC will now decide whether these deficiencies violate federal law.
The ACM petition raises only federal claims. More challenges may be on the way: the Illinois Attorney General has announced that AT&T provision of PEG access is under investigation by the state. Many communities could raise (and are considering raising) independent claims under state laws. Lansing filed a state court claim at the same time it filed its FCC claim.
These cases are serious, and at the very least should raise a red flag for attorneys in communities that plan to provide access programming to AT&T systems. It will be important to review any programming arrangements carefully to be sure that rights are not lost.