COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF TELECOMMUNICATIONS & ENERGY
CABLE TELEVISION DIVISION
Investigation by the Cable )
Television Division of the Department )
of Telecommunications & Energy on its )
Own Motion to Review the Form 100 ) Docket No. CTV 03-3
) June 24, 2004
Notice of Proposed License Application )
And Request for Further Comment )
COMMENTS OF BOSTON COMMUNITY ACCESS AND PROGRAMMING FOUNDATION, INC., CAMBRIDGE COMMUNITY TELEVISION, INC., DARTMOUTH COMMUNITY TELEVISION, FALMOUTH COMMUNITY TELEVISION, INC., MALDEN COMMUNITY ACCESS TELEVISION, INC., THE MASSACHUSETTS CHAPTER OF THE ALLIANCE FOR COMMUNITY MEDIA, NEWTON COMMUNICATIONS ACCESS CENTER, INC., PITTSFIELD COMMUNITY TELEVISION, INC., PLYMOUTH AREA COMMUNITY TELEVISION, INC., WINCHESTER COMMUNITY ACCESS & MEDIA, INC., WORCESTER COMMUNITY CABLE ACCESS, INC.
AND THE TOWNS OF ANDOVER, ARLINGTON, BELLINGHAM, DARTMOUTH, GRAFTON, NORTHBOROUGH, WINCHESTER AND THE CITY OF TAUNTON
Boston Community Access and Programming Foundation, Inc., Cambridge Community Television, Inc., Dartmouth Community Television, Falmouth Community Television, Inc., Malden Community Access Television, Inc., the Massachusetts Chapter of the Alliance for Community Media, Newton Communications Access Center, Inc., Pittsfield Community Television, Inc., Plymouth Area Community Television, Inc., Winchester Community Access & Media, Inc., Worcester Community Cable Access, Inc. and the cable license Issuing Authorities of the Towns of Andover, Arlington, Bellingham, Dartmouth, Grafton, Northborough, Winchester and the City of Taunton (collectively “the Access Centers and Issuing Authorities” or “the commenting parties”), hereby submit comments with respect to the Cable Television Division’s Notice of Proposed License Application and Request for Further Comment. The eight commenting Issuing Authorities are responsible for cable television licensing matters in their communities and therefore have a substantial and direct interest in amendments to or guidelines affecting both the Form 100 License Application and the renewal process. The Access Center commenting parties operate non-profit cable television public, educational and/or governmental access (“PEG Access”) studios and channels and are responsible for substantial PEG Access programming important to their communities. The funding and operations of the Access Centers are primarily determined by the cable television license renewal process and the Access Centers therefore have a substantial and direct interest in any amendments to or guidelines affecting the Form 100 and the renewal process. The Massachusetts Chapter for the Alliance for Community Media is a non-profit association representing Massachusetts access centers and has also joined in these comments based on the interests stated above with respect to access centers. In addition, the Massachusetts Municipal Association (MMA), the state’s leading association of cities and towns, has filed a letter supporting these comments and has authorized the commenting parties to attach a copy of the MMA letter. See Attachment A.
The Access Centers and Issuing Authorities urge that the License Application Form should elicit additional Licensee information about PEG Access, Institutional Network and other key licensing issues to enable the Issuing Authorities to make better-informed licensing decisions. The Access Centers and Issuing Authorities find that requiring such additional information will provide benefits that outweigh the costs and burdens resulting from requiring such additional Licensee information. With respect to suggested clarifications of the role of the License Application as a formal or informal license renewal proposal, the commenting parties urge that designation of the Application as a formal proposal should be conditional on an Issuing Authority finding that it has terminated ascertainment of community cable needs. Further, the commenting parties are opposed to a cable operator suggested guideline to reduce the renewal ascertainment period to eighteen months prior to license expiration. Other comments on suggested renewal procedures are set forth below.
(II) The Form 100 License Application Form Should be Re-Designed to Elicit More Information about PEG Access, L-O, I-Net and other Licensing Matters
As explained in the original Notice of Inquiry (the “NOI”) issued by the Cable Television Division (the “Cable Division”) in this matter, the license application form should provide the Issuing Authority with “sufficient information to evaluate the qualifications of the applicant and make an informed decision regarding the proposal.” Accordingly, the Access Centers and Issuing Authorities propose amending the Form 100 to include additional questions that will provide Issuing Authorities with information needed to make a more informed decision regarding initial and renewal license decisions. Because cable operator provision of support, channels and facilities for PEG Access and/or Local Origination Programming (“L-O”) is usually an area of paramount interest to Issuing Authorities during both initial and renewal licensing, it is clear that the Form 100 license application must be re-designed to provide Issuing Authorities with sufficient information concerning the cable operator’s proposals with respect to PEG Access, L-O and other matters. Although the Access Centers and Issuing Authorities appreciate the Cable Division’s efforts to retain numerous useful Form 100 information requests, for the reasons outlined below, the Access Centers and Issuing Authorities believe that the proposed Form 100 License Application falls short of the Division’s stated goal of devising a form that provides sufficient information regarding important Access, L-O and other licensing matters.
For example, with respect to the important area of ascertaining information about the cable license applicant’s PEG Access proposals, the Cable Division’s proposed Form 100 sets forth the following information request:
“[Part III] 15. State whether applicant plans to continue to offer public, educational, and governmental access channel(s). If yes, provide the location of the facilities, the facilities and equipment available (including the cost of such equipment and facilities), the hours of operation, and whether there will be technical assistance available.”
The Access Centers and Issuing Authorities recommend that the PEG Access section be expanded to elicit important additional information necessary to an informed evaluation of a cable operator’s license renewal proposal. For example, the PEG Access section of the form also should inquire about the following:
Are there known access channel signal quality problems arising from cable system or institutional network (I-Net) technical distribution plant problems? (This issue is often of concern to Issuing Authorities, Licensees, subscribers and Access Centers and inquiry into this issue will bring useful technical information to all parties.)
Does the Licensee transmit access channel signals upstream to the head-end or hub-site through upstream Institutional Network Channels (I-Net) on a separate I-Net or via residential cable system upstream channels? Will Licensee maintain head-end or origination point modulators and/or demodulators used for access signal distribution? (An Issuing Authority cannot engage in informed renewal negotiations without an understanding of how the access signals get from the studio to the signal distribution site (head-end or hub-site. Unless the Issuing Authority is apprised about upstream access distribution and modulator maintenance, it often will not even know to inquire about and negotiate for I-Net and modulator maintenance, upgrading and/or replacement.)
How many locations in the Cable System are usable and used for remote video
originations? Please attach list of origination sites and number of existing fixed and portable modulators made available by Licensee.
How many PEG Access channels are currently provided? How many PEG Access channels are proposed?
What are the Franchise Related Costs (FRCs) attributable to PEG Access and/or I-Net shown on current subscriber bills? Please attach most recent rate regulation filing showing FRC calculations. How much of PEG and I-Net related FRCs are broken out and itemized on the bill and how much is embedded in current rates?
Indicate whether PEG Access operations are governed by an access corporation, other entity or under a form of Licensee management.
Providing Issuing Authorities with the information requested in the above questions would assist Issuing Authorities and interested persons to make better-informed licensing decisions. However, development of a complete list of such questions could be significantly enhanced through a series of additional Issuing Authority, Licensee, Access Center and public roundtable discussions.
The recommended additional information requests (outlined above) are likely to impose a relatively minimal burden on cable operators because the requested information is within the possession of the cable applicants and readily available for disclosure. This easily-provided information is vital to the Issuing Authority's ability to make informed decisions.
It warrants particular emphasis that provision of a Form 100 with more complete renewal information would make the renewal process more efficient, thereby allowing earlier completion of renewal. This would thus help address the Cable Division’s longstanding concern about the current process allegedly taking too long to complete. One reason the current process may take too much time is that municipalities need to conduct numerous ascertainment meetings just to gather basic information that could be provided in the Form 100 in the first place. And cable operators could also expedite the renewal process by filing a revised, more informative Form 100 as an informal proposal earlier in the process.
Similarly, with respect to the important area of ascertaining information about the cable license applicant’s L-O facilities and proposal, the Cable Division’s proposed Form 100 sets forth an information request (Form 100, Part III, Item 14) that should be amended to elicit more information. For example, informed Issuing Authority evaluation of local origination services, and consideration of replacing local origination with PEG access (as urged by some cable operators), requires disclosure of current local origination budgets, including actual budget totals for local origination staff, employee benefits, rent, utilities, equipment maintenance, etc. The Form 100 should be amended to provide such essential information on local origination budgets.
As noted in Issuing Authority comments filed in reply to the original Notice of Inquiry, the Form 100 should also be expanded to elicit information about other important issues germane to informed licensing, including, but not limited to: identification of unserved streets; right-of-way management; known signal quality problems (if any); known compliance issues (if any); cable system channel capacity; Institutional Network (“I-Net”) capabilities and support and emergency communications capabilities (e.g., local override policies). The Access Centers and Issuing Authorities applaud the Cable Division for seeking to continue to require Form 100 cable operator information about customer service practices; insurance and bond details. The Access Centers and Issuing Authorities believe more detail should be elicited in information requests concerning the foregoing and with respect to edu
icational and municipal building service, drops and outlets; current franchise related cost (FRC) pass-through and itemization; and full and meaningful disclosure concerning the legal, financial, technical and character qualifications of the applicant. The Access Centers and Issuing Authorities strongly disagree with the Cable Division’s suggestion that financial pro formas are not used and useful. The undersigned is aware of renewal meetings where pro forma projections were regularly reviewed by Cable Committees and Selectmen to assess possible future Access Center payments and budgets. See, e.g., Attachment B, Letter from Town of Dartmouth re: usefulness of financial pro formas.
A particularly strong example of how the Cable Division needs to update the Form 100 to require relevant information can be seen with respect to growing municipal need for information about cable operator emergency communications systems for use of local first responders. After the tragedy of September 11, 2001, it has become national policy of the highest magnitude to provide local safety officials with more information and technology useful to emergency communications (e.g., availability of local override capabilities), however the Form 100 does not provide information about Licensee’s intent with respect to provision of local override and alternative emergency communications. Such information should be elicited by the form, including an exhibit containing substantial technical detail.
Finally, the commenting parties recognize the need to strike a proper balance between concern for cable operator burdens resulting from completing a comprehensive license application form and the Issuing Authorities’ need for more information in the Form 100. However, the commenting parties respectfully submit that the Cable Division has not identified actual Licensee costs relating to the Form 100. Evidence that the Licensee is not unduly burdened by the Form 100 may also be found in the fact that Licensees typically attach, on their own initiative, supplemental Form 100 exhibits not even required by the Cable Division. Thus by their actions, some Licensees seem to indicate the benefits of providing additional information. Moreover, cable television issues (and other technology issues) are more important to Issuing Authorities today than they were ten or twenty years ago, as communications technology issues are now “front and center stage.” Municipalities and interested persons now need more information about the licensing process, not less. We believe that the Cable Division may have somewhat overstated the case for municipalities needing less information. For example, the Cable Division request for comments states that cable operators “continually” provide Issuing Authorities with cable-related information, but the commenting parties observe that municipalities do not receive “continual” information and that Selectmen and Mayors often express need for far more cable-related information. Similarly, the fact that municipal officials have been involved with previous licensing proceedings does not mitigate their need for current information. Due to the changes in Issuing Authority personnel and the infrequency of licensing, the occurrence of prior licensing proceedings has little relevance to the issue of whether or not municipal officials need current information.
III. The Access Centers and Issuing Authorities Oppose Suggested Renewal Guidelines Including A Procedure to Identify When the Form 100 is a Formal Renewal Proposal.
For procedural and substantive reasons, the Access Centers and Issuing Authorities are very much opposed to the Cable Division adopting the suggested renewal guidelines at this time. Given the importance of changes to the renewal process, any such changes should only follow much fuller notice to franchising authorities and to the public and should follow actual “working group” meetings and discussions with franchising authorities and interested persons. We respectfully urge that the Cable Division’s Notice of Proposed License Application does not give adequate notice to the state’s franchising authorities, nor to the public, about the Cable Division’s consideration of changes to the renewal process or the reasons for those changes. For example, the Notice title is styled as pertaining to the “License Application,” and therefore we are advised that many municipal officials and the general public are not adequately alerted to the fact that the document addresses important license renewal guidelines. One major City official responsible for licensing matters advised us that based on the title alone, he held off reviewing the document and that he would have done otherwise had the title given notice that the renewal process (not just the license application) was also the subject of the proceeding. Also, the Notice refers to possible suggested renewal guidelines proposed by Comcast, but the Notice does not contain or explicitly spell out what these renewal guidelines are (e.g., completion of ascertainment in 18 months, potentially eliminating half of the ascertainment period). Accordingly, members of the public and municipal officials cannot within the four corners of the document find adequate notice of all the renewal guidelines and recommended practices proposed to the Cable Division. Any action on renewal procedures should only follow clearer and more explicit notice to franchising authorities and the public. The Division’s Notice is not full enough in light of the need for greater public participation. Any process of changing renewal procedures should be undertaken with great caution, and only after best efforts at better notice giving, given the fact that it is local government, not the state, that is the renewal license franchising authority. Accordingly, the state should not on its own initiative start changing the rules applicable to local franchising authorities without sitting down with municipal officials and the general public to first hear their concerns and without letting the local franchising authorities hear the state’s concerns. A mere public hearing will not suffice for such a proceeding.
Concerning proposed renewal guidelines, specific substantive concerns of the Access Centers and Issuing Authorities include the following:
The Notice, at p. 14, proposes including a “check off box” on the Form 100 in which the cable operator could check off whether the proposal is being filed as part of the formal or informal renewal process. Use of a mere check off box does not give meaningful notice with respect to a significant legal event such as filing of a formal proposal. If a cable operator believes it has legal basis for filing a formal renewal proposal, such filing should be accompanied by a clear and simple disclosure (cover letter) that it is filing a formal renewal proposal. For such a process to be fair to Issuing Authorities, the Cable Division should require clear and more direct identification of a proposal as a formal proposal (other than through “check off” of a box on a form). Further, it is most critical that filing of a formal proposal should be subject to the Issuing Authority having determined that the ascertainment period has concluded, and should follow Licensee disclosure to Issuing Authority of the legal pre-conditions to and effects of filing the formal proposal (e.g., Issuing Authority termination of ascertainment and triggering of proposal review process).
In any event, the Cable Division should clarify that the Form 100 cannot be deemed a formal proposal merely because the filing applicant may want to treat it as such. Under the Cable Act, the formal proposal is only filed after the franchising authority terminates ascertainment. 47 U.S.C. 546(b)(1). The Cable Division should ensure that any such process is subject to meaningful and informed Issuing Authority consent to the termination of ascertainment. Such issues, however, should be addressed, if at all, only in a separate proceeding following fuller notice and input by interested parties.
With respect to the Cable Division’s concerns about expediting the licensing process, as noted above, re-design of a more complete and informative Form 100 would expedite the process by enabling Issuing Authorities to have necessary information early in the process and thereby shorten the process by reducing the need for the parties to conduct so many ascertainment meetings. And, as noted above, cable operators could also expedite the renewal process by filing the Form 100 as an informal proposal early in the process.
The Access Centers and Issuing Authorities strenuously oppose the cable operator suggestion that the Division consider adoption of a guideline calling for completion of ascertainment 18 months prior to license expiration. This would gut municipal and public participation in a long-standing practice of having an extended period of ascertainment of community needs. Further, it is precisely in the last 18 months of a license period that municipal officials frequently best understand renewal needs and ascertainment priorities. We are not aware of franchising authorities in any other states subjected to such a curtailment of their federal rights to conduct ascertainment consistent with the timetables contemplated by the Cable Act. 47 U.S.C. 546. As such, we question whether such a framework would be consistent with federal law.
Similarly, the Access Centers and Issuing Authorities oppose Comcast’s suggested guideline about requiring Licensee and franchising authority to adopt a mutually agreeable renewal timetable within sixty days of a cable operator request. As a practical matter, the duration of and timetable for ascertainment and negotiations depend on many factors impossible to determine at the outset of renewal, for example: whether the Licensee ownership will change during the renewal; whether the Licensee will provide reasonable detail about requested subjects; and whether negotiations will reach an impasse. It is precisely for this reason that Congress set forth a 36 month period for the parties to get through ascertainment and negotiations. The state should not come along now and impose curtailed timetables following cable operator suggestions. Such timetables can weaken the ability of Massachusetts municipalities and the public to participate in an adequately flexible and comprehensive renewal process.
With respect to short-term renewals, the Cable Division could resolve the uncertainties resulting from expired licenses by taking steps to allow short-term extensions of existing licenses. For example, the Cable Division could investigate the feasibility of announcing, consistent with proper exercise of its prosecutorial discretion, that it will not interfere, absent extenuating circumstances, with parties engaging in consensual short-term license extensions. Exercise of such prosecutorial discretion is reasonable in light of the fact that a consensual extension typically creates mutual benefits (allowing orderly conclusion of renewal) and such benefits far outweigh any technical concerns. Use of such extensions is widespread in other states. In general, however, the Access Centers and Issuing Authorities respectfully suggest that the issue of expired licenses should be separately or prominently noticed as a subject, or not addressed at all.
It is the position of the commenting parties that the Form 100 license application form should provide more, not less, detailed information relative to proposed license renewal terms, particularly with respect to PEG Access, Local Origination and I-Net, as well as with respect to
other areas of renewal negotiations. It was (and remains) the clear intent of the Legislature to require renewal only after filing of a written application, and that the application should disclose more comprehensive information for the Issuing Authority’s review regarding the proposed renewal terms. With respect to suggested clarifications of the role of the License Application as a formal or informal license renewal proposal, the Access Centers and Issuing Authorities urge that designation of the Application as a formal proposal should be conditional on an Issuing Authority finding that it has terminated ascertainment of community cable needs. Further, the Access Centers and Issuing Authorities are strongly opposed to a cable operator suggested guideline to reduce the renewal ascertainment period to eighteen months prior to license expiration. Any changes to the renewal process should follow much more specific notice to and broader participation and input by renewal franchising authorities and the public.
Respectfully submitted by:
The Town of Andover
The Town of Arlington
The Town of Bellingham
The Town of Dartmouth
The Town of Grafton
The Town of Northborough
The City of Taunton
The Town of Winchester
Boston Community Access and Programming Foundation, Inc.
Cambridge Community Television, Inc.
Dartmouth Community Television
Falmouth Community Television, Inc.
Malden Community Access Television, Inc.
Massachusetts Chapter of the Alliance for Community Media
Newton Communications Access Center, Inc.
Pittsfield Community Television, Inc.
Plymouth Area Community Television, Inc.
Winchester Community Access & Media, Inc.
Worcester Community Cable Access, Inc.
William August, Esquire
Epstein & August, LLP
101 Arch Street, Suite 900
Boston, MA 02110
(617) 951-2717 (facsimile)
June 24, 2004