[T]he state of Vermont is countering claims by the cable giant Comcast that its First Amendment free speech rights are being violated by a requirement that the company extend its network by 550 miles in the state in the next 11 years.
One issue in the legal battle is whether Comcast, which now owns NBC, should be regulated as a traditional poles-and-wires telecommunications company or as a content provider benefiting from stronger First Amendment protections.
Vermont utility regulators granted Comcast a permit in January to operate in the state for the next 11 years. But the permit came with conditions, including increasing support of community access cable stations that carry government meetings and other programming of local interest, and extending its network by 550 miles to serve Vermonters currently lacking access.
After the Public Utility Commission rejected the company’s request for reconsideration in July, Comcast sued in federal court. In the suit, filed in August, Comcast argued that the high cost of meeting the commission’s demands would impinge on the company’s ability to deliver content to Vermont consumers at a reasonable and competitive cost.
“The Vermont PUC is looking to mandate requirements that are contrary to federal law and, further, are not imposed on any other competitor in the state of Vermont,” Comcast spokeswoman Kristen Roberts said in a statement Tuesday. “Such mandates would cost millions of dollars, place discriminatory burdens on Comcast and its customers, and arbitrarily increase their costs for cable service,” she wrote.
In a motion to dismiss filed Monday, the state said Comcast had failed to make a valid claim that its First Amendment rights were being violated, and that other claims by Comcast should be heard in state and not federal courts.
“Comcast is correct that, as a cable operator, it is a transmitter of speech and therefore entitled to some level of heightened scrutiny under the First Amendment” the state’s motion said. Citing a 1994 decision in the 9th U.S. Circuit Court of Appeals the state argued that cable companies can be regulated without impinging on First Amendment rights.
“For First Amendment purposes,” the 9th Circuit decision said, “we are concerned primarily about restrictions on programming, not on stringing wires or digging trenches; without the signals transmitted along the wires, cable is basically like any other utility, which may be regulated without implicating the First Amendment.”
Comcast has argued that the commission’s requirements are “speaker-based” –targeted directly at the company–and thus a free-speech violation. The state has countered that it requirements are “content-neutral” — it’s not Comcast’s programming that is at issue, but the transmission lines carrying the programming.
“The line extension requirement advances the state’s important interest in expanding access to cable services, which is unrelated to the suppression of free expression,” wrote Megan Shafritz, Jon Alexander and Eleanor Spottswood of the attorney general’s office.
When Comcast filed suit in August, the Vermont Access Network, a group of the local cable public access channels, argued that it was Comcast that was trying to impinge on the First Amendment by limiting its support for local community programming.
Rob Chapman, executive director of the Montpelier-based Orca Media local access channel, said Tuesday that such channels are “the new town square. Limiting their ability to do good work for the citizens is considered repression of speech,” he said.
