Comcast claim that permit conditions impinge on free speech rejected by federal judge

Editor’s note: This story by Bob Audette was published by the Brattleboro Reformer on Sept. 21.

[B]URLINGTON — A federal judge ruled Thursday that conditions in Comcast’s certificate of public good — which allows it to operate a cable franchise in Vermont — do not violate the company’s First Amendment rights.

“Comcast asserts that the Renewal CPG is unlawful because it imposes arbitrary conditions on Comcast’s Vermont cable operations, including a requirement that Comcast make costly engineering changes to accommodate what it describes as unreasonable demands from local public, educational, and governmental (‘PEG’) access channels,” wrote Geoffrey W. Crawford, chief judge of the U.S. District Court for the District of Vermont. “One of Comcast’s particular objections is to requirements in the Renewal CPG that it extend its service to areas in Vermont which are currently without cable access.”

Comcast argued that line-extension requirements might burden Comcast’s speech — that is, by diverting funds from content acquisition and by potentially causing a loss of subscribers. The extension requirement calls for the installation of 550 additional miles of cable over the 11-year term of the new CPG to extend service to unserved communities. The Public Utility Commission gave Comcast the option of paying for the costs of expansion out of its own pocket or by instituting a subscriber fee.

“Comcast’s position is that the VPUC has unjustifiably imposed substantially greater burdens on Comcast’s speech than on other cable operators serving Vermont,” wrote Crawford. While the requirement might burden Comcast’ s speech, he wrote, “expanding access to cable is not itself an interest that is related to suppression of free speech.

To the contrary, expanding access to cable would seem to promote rather than suppress free speech.”

In addition to line extensions, the conditions in the renewed CPG that Comcast was objecting to included supplying an interactive program guide, remote origination site construction and simultaneous live PEG programming and in-house switching ability.

Southern Vermont has a number of public access stations — BCTV in Brattleboro, Falls Area Community TV in Bellows Falls, Greater Northshire Access TV in Manchester, Catamount Access TV in Bennington, Springfield Area Public Access TV, Channel 8 in Wilmington, Windsor On Air, Woodstock Community TV and Ludlow, Plymouth, Cavendish TV.

“From the Vermont Access Network’s point of view, this decision eliminates the one claim that we thought could make this litigation considerably more expensive and time-consuming: the federal First Amendment claim,” said Kevin Christopher, executive director of Lake Champlain Access Television and president of Vermont Access Network, which represents Vermont’s PEG channels. “Given that the free speech claim related to a 550-mile line extension requirement, we see this as very positive progress for the state’s PEG access centers in that part of the litigation. An increase in the cable length and possible subscriber base has the potential to translate into more viewers, more volunteers, and more revenue for Vermont’s community media centers. We are looking forward to the case proceeding and to having the state order upheld on its merits.”

According to a report from the PUC, Comcast had failed to meet “community needs and interests,” especially in not providing specific scheduling information for public access channels. Since transitioning to an interactive program guide in 2010, Comcast has listed only very general descriptions for these channels such as “public access programming” or “government access programming.” By not providing specific schedule information, the commission said Comcast violated the terms of both its previous permit and a 2011 FCC order prohibiting the telecom from treating public access stations differently from commercial ones.

Comcast argued that paying to retrofit its technology would increase Vermonters’ cable bills, but the PUC rejected these arguments, saying it would be unfair for customers to “bear both the burden of Comcast’s non-compliance as well as the costs of remedying such non-compliance.” The commission ordered Comcast to make the necessary infrastructure changes at its own expense and fix the problem with the interactive guide.

On Aug. 28, 2017, Comcast filed suit in federal court, arguing the PUC “exceeded its authority under federal and Vermont law” by imposing “numerous conditions on Comcast’s continued cable operations in the state that are arbitrary, unprecedented and will ultimately harm local cable subscribers by resulting in millions of dollars in increased cable costs.”

It said the commission “did so despite overwhelming record evidence that Vermont cable subscribers do not want to incur any additional costs or fees for the kinds of conditions imposed” in the commission’s January 2017 order.

However, wrote Crawford in the Thursday decision, “none of Comcast’s allegations plausibly suggest that the burdens are substantially greater than necessary to further Vermont’s important interests. … Many Vermont residents find cable services to be valuable, but if service is limited to a few densely populated areas, Vermonters outside of those areas fail to benefit. Thus, inherent in the principle of the public good is an obligation to make service available to as many customers as possible within a company’s service territory.”

Being required to provide space and resources for PEG channels, wrote Crawford, is also not an infringement of Comcast’s First Amendment Rights.