PEG channel disputes have now moved (literally) to a new level. Historically, these were handled on a local level. Now as a new FCC case on PEG matters exemplifies, they are increasingly “federalized,” i.e., being shifted to the federal level. This post will briefly describe the reasons for this shift, put it in historical perspective, and note the related point that municipalities wishing to preserve PEG channels as they have traditionally been provided should file comments with the FCC by March 9.
Traditionally, local franchises have set forth the specifics on channels for public, education or governmental (PEG) use – - for example, the number of channels to be provided, funding for them, who would operate them, where a studio might be located, and so on.
Several things have changed to upset this situation: First, in some major states (such as Texas, California and Florida) franchising has been shifted to the state level with statutory provisions and franchise terms which discourage PEG channels. Second, cable operators have taken actions that discourage (and sometimes lead to the elimination of) PEG channels such as not agreeing to new channels, eliminating or consolidating existing channels, decreasing or eliminating PEG funding, and eliminating studios and other “in kind” support for PEG channels. A cynic might note that PEG channels take up space which otherwise might be used by programmers who would pay the cable company to have their channels carried (more shopping channels anyone?).
In a more recent action affecting PEG channels, Comcast (and other cable companies) have attempted to conserve channel space by providing PEG channels (but only PEG channels) solely in a digital format (digital channels take up less space on a cable system than older analog channels). However customers with older analog TV sets will have to get (and in many cases, pay the cable company for) a converter box in order to get PEG channels and, for example, see their city council meeting and the like. This converter box is different from the one necessary for older TVs to continue working with rabbit ears. Comcast has also proposed to put PEG channels into what some have viewed the “digital desert” (i.e., channels in the 900 range).
Concurrently, AT&T has attempted to put PEG channels on a separate and inferior video delivery system from that used for all its other channels. In essence, on AT&T systems, PEG signals are provided in a manner that makes them hard to access (hundreds of PEG channels located on “Channel 99,” with individual channels accessed slowly by a click-through menu), the actual picture is in a “You-Tube” internet type format and lacks the functionality (compatibility with digital video recorders, closed captioning and the like) of all other channels.
The upshot are three Petitions to the FCC relating to PEG channels: Two (by the City of Lansing and the Alliance for Community Media) challenge under federal law AT&T’s provision of PEG channels in a manner different and inferior to that of other channels. The third petition (Dearborn et al.) challenges Comcast’s actions as violating federal requirements that PEG channels be part of the “basic service tier” and other requirements.
In early February, the Obama FCC combined these three cases into one and solicited comments from all interested parties by March 9. As is perhaps obvious, this “federalization” of PEG channel matters follows somewhat naturally from the state cable legislation that is generally harmful to PEG and takes away the prior local forum for resolving PEG channel issues. Cities and PEG advocates are thus left only with the Federal Cable Act and Federal forums (FCC, Federal Courts) to defend PEG channels.
From a broader perspective, PEG Federalization bears some relation to the 2007 decisions by the Bush FCC towards federalizing the cable franchising process by setting standards for cable franchise grants and renewals, especially those involving phone companies seeking cable franchises. The FCC decisions asserted broad jurisdiction by the FCC over what heretofore had been viewed as purely local franchising matters, a position generally upheld by the Sixth Circuit Court of Appeals in 2008.
Viewed from a historical perspective, such federalization of cable matters follows classic patterns in utility regulation: Although we do not focus much on it these days, regulation of the classic utilities such as telephone, gas, and water at its inception was exclusively local through so-called “franchise regulation.” But as those utilities expanded to cover multiple franchise areas and then multiple states, regulation shifted from the local municipality to the state and often thence to the federal level. The specifics here are different but viewed from the sweep of the past 150 years the result is much the same – - the federalization of what had been previously largely local issues.
To come back to the immediate point, if a municipality is interested in preserving its PEG channels as they have traditionally been provided – - each on its own channel number, easily accessible, in high quality, and generally the same in accessibility, quality and features as local TV stations on cable – - make sure to file comments at the FCC by March 9. The relevant FCC documents, including information from its Public Notice on how to file, are available, among other places, on our web site at http://www.varnumlaw.com/serviceGroups/cableTV/cableFranchising/
Every few years the Federal Communications Commission is asked to preempt local zoning (and sometimes building codes as well) as to telecommunications towers — radio, TV, cell phone and the like. Generally these attempts attract a lot of attention initially but then fizzle out.
In that regard the latest attempt to impose “shot clocks” and other restrictions on zoning applications for cell towers seems to be following a similar track. Although it was expedited by the FCC in the fall of 2008, presumably to allow the Bush FCC to act on it prior to leaving office, that now seems unlikely. It is also unlikely to be a high priority for a new administration.
Here are some examples of prior preemption attempts which followed a similar trajectory, followed by some observations as to why these patterns occur.
In 1996 the cellular industry was surprised to find courts approving temporary moratoria on cell tower zoning applications, usually until communities could adopt zoning ordinances to come into compliance with the then recently enacted cell tower zoning provisions of the 1996 Telecommunications Act, 47 U.S.C. § 332 (c)(7).
Reacting typically, in late 1996 the cell phone companies filed a petition at the FCC to have zoning moratoria declared illegal, or if not illegal, greatly restricted. The FCC, acting with unheard-of speed, sought comments both in December 1996 and then in July 1997. Ultimately the proceeding went nowhere and was resolved with an agreement between the FCC’s then Local and State Government Advisory Committee, the cellular industry, and the FCC on best practices for wireless tower siting and an informal dispute resolution process.
Then in August 1997, the FCC started a rulemaking which would have largely overturned the 1996 Telecommunications Act’s general preservation of local zoning authority over cell towers. It proposed to do this by having the “exception swallow the rule”, namely by allowing the FCC to review and reverse any local zoning decision which it considered tainted by concerns over RF radiation. The concept was to do this under the 1996 Act’s provision that municipalities cannot regulate cell towers under their zoning powers to the extent cell tower radiation complies with FCC rules.
In the rulemaking the FCC proposed that it could “second guess” the stated reasons given by a local zoning authority for its decisions, and could determine that their “true” basis for decision was RF radiation based (so the FCC could reverse it). The FCC also proposed that it could intervene in court proceedings to support cellular companies. Although starting with a bang, the proceeding concluded with a whimper in 2000, when it set forth procedures for petitions to the FCC claiming that municipalities violated the RF radiation exception.
Concurrently, in 1997 the TV stations got the FCC to propose a rule requiring states and communities to act on all permits and approvals needed for broadcast towers within 21 to 45 days, with failure to act in these timeframes resulting in the application automatically being granted. In other words, a “shot clock.” Their argument was that this change was needed for the transition (actually occurring in 2008-2009) to digital television and that state and local zoning and permitting would slow the transition. This rulemaking also basically came to naught.
These proceedings followed a common pattern of the industry claiming an artificial crisis and providing misinformation on municipal activities, followed by a retreat by the FCC once municipalities objected and provided information on the true state of affairs. In this regard, the claimed “crises” turned out to be far less than portrayed by the industry, municipalities educated the FCC about the important role played by local zoning and by building codes for the public health, safety, and welfare, and the FCC often appeared to realize it was on thin (or non-existent) ice legally.
This somewhat predictable cycle has been aided by Washington’s skepticism, especially in recent administrations, about the role of government (other than that of the Federal agency proposing to preempt other units of government!). It has been further aided by the fact that the telecommunications industries hire FCC alumni to lobby their former employer, which results in a somewhat self-reinforcing cycle until municipalities find their role threatened and educate the FCC on the true state-of-affairs on the matter in question.
So, although the final chapter of the cell tower industry’s 2008 zoning preemption proceeding has not yet been written, its trajectory so far seems to be following that of similar efforts in prior years. But municipalities must stay vigilant, as this will certainly not be the last time such preemption is attempted, and attempts could be made to resuscitate this proceeding.