<nettime> FYI: Getting it straight on cable franchise laws

[Mike Weisman <popeye@speakeasy.org>]

UPDATE ON THE SAN JOSE CABLE FRANCHISE CASE (featured on Bill Moyer's Now
program)

One of the most frustrating elements of activism surrounding community
broadband infrastructure in the US has been the persistent spin and
deception regarding the admittedly obscure and complex laws governing
cable franchising in the United States.

I'll avoid a deconstruction of the why and wherefore of this history.  
The truth is, in a nutshell, that the laws heavily favor community groups
and municipal governments.  The cable companies have never won a challenge
to community cable requirements. Ever.

In Comcast of California v. San Jose, the cable company challenged the
city's formal hearing process and further claimed that the city's required
infrastructure and public benefits infringed the company's 1st Amendment
rights.

The decision on Comcast's petition for an injunction was issued September
29, 2003.  The most important portion of the decision is the following
recitation:

"In addition, Comcast cannot show that it 'has been adversely affected' by
a failure of the City to follow the procedural requirements of the
statute. Comcast argues that adverse impact has been established through
its monetary investment in the San Jose cable system to date- an
investment which Comcast cannot recoup in the event that its renewal
application is denied.  Comcast also contends that, in the context in the
context of a First Amendment violation, adverse impact is presumed.  
Neither of these arguments is persuasive.

Although Comcast is correct that it may lose its monetary investment, an
event which will occur only if Comcast is ultimately denied renewal,
Comcast has no entitlement to renewal.  Therefore, its business decision
to invest money into a San Jose cable system is just that- a business
decision made by Comcast.  Such decision cannot be used against the City
to establish adverse impact."

When your local municipal cable franchise bureaucrats announce that they
have no leverage over Comcast because 'all the laws favor the cable
companies...', consider digging up the San Jose decision and offering a
copy to every member of your city council.

Comcast ...v City of San Jose, Order Denying Plaintiff's Motion for a
Preliminary Injunction, Docket No. 5:03-cv-02532-RS, N.D. CA (2003)


Mike Weisman
Sick of it...in Seattle
  

-- 
Please respond to:
Mike Weisman
popeye@speakeasy.org


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