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Maine Urges 1st Circuit to Keep Public Access

From ACM Newsletter — 12/15/2020: 

BOSTON (CN) — A Maine law designed to prevent cable companies from relegating public-access  channels to “digital Siberia” came under attack Thursday from a group of cable operators who told the  First Circuit that it violates federal requirements.  

“Cable operators don’t like these channels because they don’t make any money from them, and they’ve  done everything possible to make them unpopular so maybe someday they won’t have to carry them  anymore,” Christopher Taub of the Maine Attorney General’s Office told the court.  

“They make them hard to find and hard to watch,” he complained.  

The Maine law says that cable companies have to give public-access stations low channel numbers,  summarize their programs in channel guides and broadcast them in high-definition if the program was  recorded in HD.  

U.S. District Judge Nancy Torresen upheld the law in March, saying it was consumer-protection statute  that did not conflict with federal law. The judge specifically decried the cable operators’ decision to move  the stations from single-digit channels to the 1300s, what she called “digital Siberia.”  “Anyone who has missed the first ten minutes of a television program because she was scrolling through  the channels in search of it knows that the process can diminish the quality of the viewing experience,”  Torresen wrote.  

But the idea that the Maine law is a consumer-protection statute is absurd, argued Jessica Amunson of  Jenner & Block in Washington, D.C.  

“No one has suggested that a channel placed in the 1300s is a low-quality or dangerous product,” she  argued, and “a lower-resolution picture is not dangerous or deceptive.”  

Nevertheless, U.S. Circuit Judge Sandra Lynch demanded, “How are people supposed to find these  channels when you move them, and you don’t provide any specific information?”  

“People are informed in mailings and in their cable bills,” Amunson answered.  

“Why not in the program guide?” Lynch countered.  

Rather than answering, Amunson said the program guide “is an information service, and states are not  allowed to regulate information services.”  

But U.S. Circuit Judge David Barron was skeptical. “There’s something a little bit askew about the idea  that Congress wanted to make these channels usable, but it also prevented cable franchisors and states  from making them findable,” he said.  

Amunson insisted that “we’re not doing anything nefarious,” and that moving the channels put them into  logical groupings with PBS stations.  

Barron was also skeptical that it was hard for cable companies that receive public-access signals in HD to  broadcast them in HD, even though Amunson insisted that doing so would require cable companies to  upgrade their equipment.  

“Even if it’s received in HD by the operator, and even if the operator can send out HD, it would require  upgrades?” he asked.  

“Yes,” said Amunson. “That’s why we’re here.”  

Barron, an Obama appointee, appeared incredulous. “Is that in the record?” he asked. 

Maine’s lawyer Taub said this claim “doesn’t pass the straight-face test.”  

He also said it was “ridiculous” that the program guide for public-access channels contains no  information.  

“Right now they just say ‘Local’ and that’s it,” he said. “They could put the name of the show. If it’s a  football game, you don’t have to say what happened the last time the teams met, but you have to have  something. It would be like a library that eliminated the card catalog so you had to look through every  book to find what you want.”  

But Amunson replied that public-access stations are “hyper-local,” and “you’d have to have different  information for every locality whereas most programs are statewide or regional.”  

Taub offered a grim fate if Maine is blocked from regulating public-access programming. “The cable  operators could say we’re going to give you a postage-stamp-size station,” he said, “and we’ll put it  somewhere in the 8000s, and it has to be in black and white.”  

Jonathan Nichols-Pethick, a professor of media studies at DePauw University, noted in an interview that  public-access channels are important because “they’re often the only place where local citizens can see city  council meetings.” 

The placement of the stations “was always going to be contested — that channel space is just too valuable,”  he said.  

“The real crux of the matter is, of course, money. I think the fate of public access is a litmus test for how  far we’re willing to let service providers shrug off any semblance of commitment to the idea of the public  interest.”  

Public-access TV began in the early 1970s when the FCC began mandating it. The Supreme Court struck  down some FCC rules in 1979, and Congress responded with the Cable Act that was written in 1984 by  Senator Barry Goldwater. The question in this case is whether the Maine rules are permitted under the  act.  

The text of the act is opaque in many places, and Thursday’s hearing repeatedly saw the judges expressed  frustration with the difficulty of the case, peppering the lawyers with complex questions that they  sometimes found confusing with the result that an argument scheduled for 30 minutes ran almost an hour  and a half.  

“A logic professor would have fun trying to figure out the decision trees in this case,” said Lynch, a Clinton  appointee.  

At one point, Lynch suggested that the panel, which also included U.S. District Judge Allison Burroughs,  should ask the FCC for guidance.  

Taub responded that “I believe you can interpret the statute as well as the FCC can.”  Lynch laughed. “That’s sort of being complimented by the left hand,” she said.