The Ridgewood Village Council recently directed Village Manager James Ten Hoeve and Village Attorney Matthew S. Rogers to investigate the legality of Cablevision’s recent decision that requires their subscribers to obtain, and in some cases pay for, digital cable boxes to receive public access channels (including Channel 77, where Village Council and Board of Education meetings are broadcast).
Here’s what officials in Yonkers, NY have to say about Cablevision’s actions:
September 26, 2008
Mayor Blasts Cablevision for Limiting Public Access Channels
Yonkers Suggests Cablevision May Have Violated Federal Law in Placing on Availability Restrictions on Public, Education and Government Access Channels
City May Seek Injunction Against Cablevision to Protect Residents’ Rights
YONKERS, NY — Mayor Phil Amicone is blasting Cablevision for moving unilaterally earlier this month to limit the availability of public, education and government access channels to many of its subscribers in the City of Yonkers, and is now threatening legal action if the company does not immediately remove those limits.
Public, education and government access channels, or PEG channels, are public amenities provided for by franchise agreements between cable companies and municipalities like Yonkers. It is standard in those agreements for the franchisee, in this case Cablevision, to provide those channels free of charge to all subscribers including those on its most basic cable service package.
However, on September 16, 2008, Cablevision began requiring its customers to obtain, and in some cases pay, for digital cable boxes in order to receive PEG channels, a move Yonkers believes is in violation of federal law.
“Access to PEG channels has always been a basic right of the cable-viewing public and should continue to stay that way. We believe that what Cablevision has done in limiting access to and in some cases charging its subscribers additional fees for these channels is not only wrong, it may in fact be a violation of federal law. I have directed our Corporation Counsel to notify Cablevision of our intent to use any and all legal means available in order to ensure that the public’s access to these important informational channels will continue unfettered,” Mayor Amicone said.
Amicone said that although Cablevision has a limited offer of one free digital cable box for its analog customers (those without digital boxes), the move effectively limits access to PEG channels in several ways:
1) The free digital box offer lasts only 60 days;
2) Only one digital box is included in the offer, limiting PEG channel availability to one TV set per household; and
3) Cablevision may begin pushing hidden charges once digital boxes are installed.
The mayor said that even more troubling was the fact that Cablevision’s began imposing these limits unilaterally and without approval from the City of Yonkers, the NYS Public Service Commission or the Federal Communications Commission.
The issue is an important one since PEG channels offer informational programming about the public school system and city government, allow officials to communicate with their constituency, televise important public meetings and provide the public at large with an opportunity to disseminate information over cable airwaves.
The city notified Cablevision of its demand to immediately remove the new limits in a letter dated today. The letter cites specific requirements provided by federal law requiring cable companies to provide PEG access to subscribers without restriction and free of charge, and warns the company of the city’s intent to pursue legal remedies if the limits are not removed.
A copy of the letter is below:
Cablevision maintains in an August 12, 2008 letter to the city that it would only affect a small number of customers and that the move was part of an ongoing effort to improve service through the ongoing transition to digital technology.
But with more than 40,000 subscribers in City of Yonkers, even the approximately 10% of its subscribers who Cablevision estimates are affected by the new restrictions still amounts to thousands of customers.
Mayor Amicone also acknowledged that technology upgrades are a normal part of doing business for service companies like Cablevision and expressed his support for Cablevision’s efforts to augment service quality.
“We understand that technology upgrades are a necessary and even a welcomed part of doing business. But we can’t allow ordinary customers who have been loyal for years and have paid their bills on time to be left behind at the whim of a corporation. Safeguards must exist for the average consumer, and in this case city government as administrator of the franchise agreement is that safeguard. We will therefore do everything within our power to make sure Cablevision provides PEG access to all its customers free of charge,” Amicone concluded.
Below is a copy of the city’s letter to Cablevision…
September 26, 2008
Mark Weingarten, Esq.
DelBello, Donnellan, Weingarten, Wise & Wiederkehr, LLP
1 North Lexington Avenue
White Plains, New York 10601
Robert Hoch, Director, Government Affairs
Six Executive Plaza
Yonkers, NY 10701
RE: City of Yonkers Objection to Cablevision Transition of PEG Channels to Digital Tier of Programming
Dear Mr. Weingarten and Mr. Hoch:
Cablevision Systems, Westchester Corporation (“Cablevision”) informed the City of Yonkers, New York (“City”) on August 12, 2008, that it intends to shift all public, educational and government channels (“PEG”) to digital transmission, thereby effectively creating a second basic tier of service. This action will require City residents to acquire set-top boxes in order to access City programming. Cablevision created this second basic tier on September 16, 2008, and did so without the permission of the City. Cablevision’s unilateral action is in violation of federal law and is a material breach of the existing franchise between the City and Cablevision entered into on December 17, 1985 (“Franchise Agreement”). Accordingly, the City objects to Cablevision’s action and demands that it reinstate transmission of PEG channels to a single basic tier of service available to all subscribers in the City of Yonkers without need for a set-top box.
The Franchise Agreement requires Cablevision to “comply with all laws, rules and regulations of the local, state and federal governments and their regulatory agencies or commissions which are now or may hereafter be applicable to the construction and operation authorized herein.” (Section 6). In addition, the Franchise Agreement requires that Cablevision’s provision of PEG channels is “[s]ubject to the applicable Rules and Regulations of the FCC and Commission” (Section 15).
The FCC requires cable providers to provide PEG channels on a single basic service tier. See In the Matter of the Section of the Cable Television Consumer Protection and Competition Act of 1992 Rate Regulation, 8 FCC Rcd 5631, 5644 (1993) (1992 Cable Act contemplates that each cable operator must offer only one basic tier); Time Warner v. FCC, 56 F.3d 151, 199 (D.C. Cir. 1995) (finding single basic tier requirement consistent with statute). Further, a basic tier is presumed to be in analog, unless the cable system is fully digital. In the Matter of Implementation of Section 3 of the Cable Television Consumer Protection and Competition Act of 1992, 20 FCC Rcd 2718, 2720 (2005). Cablevision’s division of its Broadcast Basic tier into channels that do, and do not, require a digital converter box creates a dual basic tier in violation of law. Further, the dual tier evidences that Cablevision is not operating a fully digital system at this time.
In addition, Cablevision may not place PEG channels on what is effectively a higher level of basic service without the City’s explicit permission, which has not been provided. See 47 U.S.C. § 543(a)(7); In the Matter of the Section of the Cable Television Consumer Protection and Competition Act of 1992 Rate Regulation, 8 FCC Rcd at 5737-38 (cable provider required “to carry PEG channels on the basic tier unless the franchising authority explicitly permits carriage on another tier” ).
Cablevision’s shift of its transmission of PEG channels to a second basic tier, without the City’s explicit consent, is in violation of federal law and is a material breach of the Franchise Agreement. Therefore, the City demands that Cablevision revert its transmission of the PEG channels to a single, non- digital basic service tier no later than 5:00 p.m. on October 10, 2008, and to inform this office immediately upon taking this action. If Cablevision fails to take the demanded action, the City intends to enforce its rights in an appropriate forum.
I look forward to hearing from you.
Sincerely, Frank J. Rubino
cc: Mayor Philip A. Amicone
Deputy Mayor William Regan
Chief of Staff Lisa Mrijaj
City Council President Chuck Lesnick
Majority Leader Sandy Annabi
Minority Leader Liam McLaughlin
Council Member Patricia McDow
Council Member Joan Gronowski
Council Member John Murtagh
Council Member Dee Barbato
Mark Blanchard, Deputy Corporation Counsel
William Derasmo, Troutman Sanders, Special Counsel
Honorable Jaclyn Brilling, Secretary, NYS Public Service Commission
SOURCE: Press Release