Michigan Cities Turn to FCC for Answers in PEG Lawsuit

Attorneys for four Michigan communities have asked the Federal Communications Commission for answers to seven questions requested by a federal judge there to help resolve a suit over the movement of public, educational and government channels by Comcast Corp.

The judge in the case, brought by the cities of Dearborn, Meridian, Bloomfield and Warren, Mich., decided she couldn't conclude the case without direction from the FCC on the dispute. The federal agency has jurisdiction to determine how the federal Communications Act is interpreted, the judge ruled in October.

The cities filed suit in U.S. District Court for the Eastern District of Michigan last January to stop Comcast, which had announced it would move PEG channels in those communities from low channel numbers onto channels in the 900 range in the digital tier.

Comcast wants to move the channels to recover the bandwidth to launch more high-definition channels. Comcast offered to provide boxes, free for a short term, to analog-only subscribers who still wish to watch the local content, but eventually consumers would have to upgrade to digital or pay to retain the box to watch PEG.

The cities have local franchise language that dictates either that the PEG channels may not be moved without prior municipal permission; or language that bans extra charges in order to view PEG programming. The cities allege the movement of the channels is discriminatory because only PEG selections face a shift, not commercial channels.

The shift would impact an estimated 400,000 basic-only homes in the state, but the cities argue that number is actually higher, when one factors in analog sets within digital homes that won’t be able to access PEG programming after a shift.

On Oct. 10, Judge Victoria Roberts allowed the cities to continue to block the migration of the channels, but could not conclude the dispute because she indicated that to make a ruling, "the FCC's technological expertise would be especially helpful," according to the petition filed to the FCC.

The communities want answers to questions such as whether they can still regulate PEG obligations in a market subject to an effective competition ruling; whether the discriminatory treatment of PEG is an “unlawful evasion” of federal law; and whether Comcast can charge for equipment that is used only to view PEG channels. They also want the FCC to determine if PEG channels are still considered part of a basic tier if they’ve been translated into digital signals.