Comcast Claims its Corporate Interests are More Important than those of Citizens and Communities

Cable Giant Rejects New Public Interest Requirements in San Jose, CA, as a Violation of its "Free Speech" Rights

January 6, 2004

A 244-page legal brief (Part 1 (3mb PDF), Part 2 (3mb PDF), Part 3 (4mb PDF) ) filed by the nation's largest and most powerful cable company--Comcast--in its recent suit against the City of San Jose, California, reveals how the company plans to promote its narrow corporate interests at the expense of community needs and citizen rights.

Across the country, Comcast is engaged in hardball political tactics designed to weaken the roles that local governments and citizens can play in harnessing the benefits of broadband communications. The stakes for the public, and ultimately for the health of our democracy, are high. Will the design and deployment of our major local digital networks become solely the province of cable giants, or will a more democratic process ensure that communities have a more prominent role? The answer to this question will in large measure determine the extent to which the full democratic potential of the broadband revolution is realized.

San Jose, having grown frustrated over the years with the failure of Comcast and its corporate predecessors (including AT&T and TCI) to fulfill promises made to the city on how the cable system would operate, has formally asked for the termination of its cable "franchise" (the contract between the local government and the cable company). In the most recent franchise negotiations, Comcast has rejected the city's request for a ten-percent set-aside of system bandwidth for public use, and for an institutional network for city buildings and schools, the basis for a range of digital services that other cities have used to foster public expression and civic participation. A hearing is scheduled soon to consider whether the City can lawfully end its contract with Comcast.

In its legal documents, Comcast has disputed San Jose's right either to ask for access to new digital services, or to terminate the franchise. Like many a forward-looking city, eager to reap the civic benefits of upgraded cable systems, San Jose has been seeking to expand the range of services that its noncommercial public interest channels provide, principally by ensuring that its public, educational, and governmental (PEG) access channels can utilize the same digital technology that Comcast now uses to distribute its TV programming. The city also wants the cable company to live up to a prior commitment to build a high-speed community network (known as an Institutional Network or "I-Net") that will connect city buildings, including schools and libraries.

For its part, Comcast claims that "cable operators are engaged in speech entitled to the full scope of First Amendment protection," and that they are "entitled to the full panoply of protections afforded to members of the press in the marketplace of ideas." Any legal review, they argue, must afford them the highest legal protections afforded free speech issues, thus invalidating almost any broadband-related request made by the San Jose as an "illegal requirement" violating Comcast's "free speech' rights. Historically, cable companies have been afforded a great deal of First Amendment protections by the courts, which too often have accepted the industry's argument that the cable operator acts like a newspaper publisher. As a result, the cable industry has successfully used the First Amendment as a shield to fight off proposals that would make their monopoly networks more democratic and competitive.

But instead of granting cable companies the protections historically accorded newspaper publishers, these conglomerates should be viewed for what they really are--vendors of entertainment whose exclusive municipal contracts, and the valuable rights-of-way they use in building and upgrading their networks, subject them to certain public-interest obligations. Comcast itself, perhaps inadvertently, acknowledged its true role when, in its legal brief, it describes its own network as a "video entertainment system." Given that Comcast's major programming interests include such commercial fare as the Golf Channel, QVC, and the G-4 games channel, moreover, it's clear that Comcast (and other cable operators) are primarily running monopoly show-biz commercial networks rather than journalistic operations.

The City Proposes and Comcast Opposes

Among the requests made by San Jose that Comcast rejects are the following:

• Community network access to the Internet.
• Availability of the video-on-demand, interactive TV delivery system for community programming.
• Sufficient fiber-optic lines to serve the entire community, including the downtown business area.
• Compliance with the city's living wage, non-discrimination rules, and minority outreach requirements.

PEG services are clearly being targeted by Comcast for eventual elimination. In one particularly revealing footnote in its brief, for example, Comcast claims that "... it is clear that new technology has eliminated much of the need [their italics] for cable operators to subsidize video soapboxes." According to Comcast, "Modern technology has created many new pipelines," implying that PEG can be replaced by other outlets, such as the Internet. Comcast fails to acknowledge, however, that the Net and other new media do not provide an in-depth range of local news and information. Since each PEG channel, according to Comcast's own estimates, is worth a minimum of $21.6 million over a ten-year franchise period, the company's financial interest in seizing these channels so they can present additional revenue-generating fare is clear.

Since the 1970s, the cable industry has steadily stripped the ability of communities to determine how cable serves them. Cable lobbyists in Washington, DC, state capitals, and at city halls across the country have spared no expense in making their case, and, as a result, cable is now largely unregulated. Consumers' face ever-skyrocketing rate increases, independent programmers can't effectively compete in cable's closed environment, and community-access channels are too often treated as second-class citizens. And now cable lobbyists have been able to secure new rules that permit them even greater control over the country's broadband future. Ultimately, when companies such as Comcast claim that the free speech rights of a handful of media conglomerates are more important than the rights of the citizens they purport to serve, the cable monopoly poses a major risk to our democracy.

Comcast is now the nation's largest cable company, serving 22 million subscribers in 4,400 communities nationwide. We cannot allow them and other cable companies such as Cox and Time Warner to dictate how a community's broadband digital media platform operates. The ability of communities to craft a digital "commons" that serves the interests of all will be effectively blocked unless cities have the right to use digital networks to promote the interests of democratic discourse. Programming choice is also an issue. According to a San Jose report, "channel capacity available to the operator will become virtually unlimited from a practical standpoint." Those channels should be made available to commercial and non-commercial providers not a part of the today's consolidated media market.

It is time for a nationwide campaign to advocate for a new federal policy that ensures that communities can effectively benefit from the digital age, and that monopolies like Comcast are required to operate in a more open and democratic fashion.