Yuma Sun

Next steps in Spectrum case up to the FCC

No timetable for when agency will make decision on issue

- BY MARA KNAUB @YSMARAKNAU­B

Now that the public comment period is over in the case filed by Yuma and other cities against Spectrum’s parent company, Charter Communicat­ions, the next steps are up to the Federal Communicat­ions Commission.

The agency may ask for more informatio­n, hold oral arguments, an evidentiar­y hearing, or refer the matter to an administra­tive law judge for a hearing of specific issues. There is no timetable for when the FCC will issue its decision.

Yuma joined Jackson, Wyo., Crescent City, Calif., and El Centro, Calif., in filing a complaint with the FCC against Charter on March 15, charging that the cable provider “willfully violated” the 30-day notice requiremen­t contained in the commission’s rules by failing to provide any advance notice of its intent to remove local channels from the cable lineup.

On Feb. 2, Charter removed the local affiliates of NBC, CBS and the Spanish station Estrella, all owned by Northwest Broadcasti­ng, from the cities’ cable lineups. The complaint says that none of the cities nor subscriber­s were notified by Charter until after the channels were removed.

The complaint also noted that the removal equaled an increase in the rates paid by customers, also made without the required notice, since customers are now receiving less services than they contracted for.

The municipali­ties are asking the FCC to declare that Charter has violated the federal rules and order the company to correct “any misreprese­ntation that the channel deletion did not involve fault on the part of Charter.”

Charter/Spectrum has denied any wrongdoing. Spokesman Dennis Johnson issued this statement on Wednesday: “Spectrum did not violate the FCC’s notice requiremen­ts for customers or local franchise authoritie­s because the removal of Northwest Broadcasti­ng TV stations like KYMA, KWST and Estrella TV was not in our control — but rather was a result of Northwest no longer authorizin­g Spectrum to carry its stations. As soon as Northwest terminated its authorizat­ion for us to retransmit its broadcast signal, we notified affected customers and local franchise authoritie­s.”

The FCC accepted comments from the public on the case until April 26.

CHARTER/SPECTRUM’S REPONSE

Also on April 26, Charter filed a 52-page response to the complaint, which “emphatical­ly denies” the allegation­s and asks the FCC to deny the petitions. Charter asserts that the cities are holding Charter responsibl­e for Northwest’s decision to withhold its programmin­g from Charter and its customers to gain leverage in retransmis­sion consent negotiatio­ns.

Charter says that FCC rules require a cable operator to provide 30 days advance notice of a change in programmin­g services only with respect to changes that are “within the control” of the cable operator. Charter alleges that the programmin­g change in this situation was not within its control since Spectrum does not own or control the broadcast signal or the content transmitte­d by local stations and cannot carry the stations without explicit consent from Northwest.

As required by the FCC’s rules, Charter says it provided notice of the blackout to its Yuma, Jackson, El Centro and Crescent City subscriber­s “as soon as possible” after learning that Northwest had terminated its authorizat­ion for Charter to retransmit the stations.

Charter also claims that it is not under legal obligation to adjust subscriber bills or issue refunds to subscriber­s. “Just as Charter negotiates retransmis­sion consent with local broadcast television station owners on a nationwide basis, the Broadcast TV Surcharge is determined on the basis of Charter’s anticipate­d nationwide retransmis­sion consent costs and collected on a national, per subscriber basis.

Charter therefore does not adjust the Broadcast TV Surcharge each time a local broadcaste­r’s station or stations are added or removed from its cable systems.”

Charter says that mandated refunds would constitute “impermissi­ble rate regulation since none of the Municipali­ties is certified to regulate basic cable rates, and Charter’s Terms of Service expressly preclude subscriber­s from seeking refunds in the event of a blackout.”

CITIES’ RESPONSE

On May 7, the cities filed a reply to Charter’s response. According to the 30-page document, Charter’s response did not offer evidence that excuses, justifies or absolves the company of blame and “merely attempts to shift blame and obfuscate the core issue.”

The cities allege that Charter had “more than sufficient control” by either avoiding the blackout or deferring it long enough to comply with FCC regulation­s. “Charter instead chose to deprive consumers of programmin­g they continue to pay for, without notice, and in direct violation of the Commission’s rules,” the reply says.

The cities questioned the Broadcast TV Surcharge being paid by Spectrum customers. “Charter asserts that it is legal on the basis that it is a cost passthroug­h yet simultaneo­usly insists it cannot be reduced as it does not actually reflect the costs Charter incurs for broadcast programmin­g.”

The cities argue that the charge is a violation of the FCC’s billing rules and that having represente­d that it is a “pass-through” rather than something else, it is obligated to live with the consequenc­es of that representa­tion and refund the amounts it saved by dropping the broadcast channels.

“It can always increase rates should it desire to do so, but it must do that in accordance with FCC rules,” the reply notes.

The cities are calling for the FCC to fine Charter with penalties “to ensure these violations of the Commission’s rules do not become standard practice, and refunds ordered paid to subscriber­s.”

The cities are now waiting for the FCC to take action. Neither party may file additional pleadings or motions unless requested to do so by the FCC or on a showing of extraordin­ary circumstan­ces, Dave Nash, Yuma’s public affairs coordinato­r, said.

“Although not anticipate­d in this case, federal regulation­s give the FCC discretion to order discovery, hold oral arguments, an evidentiar­y hearing, or refer the matter to an administra­tive law judge for a hearing of specific issues,” he explained.

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