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In the Matter of Comcast Social Contract - EX- PARTE COMMENTS OF THE CITY OF INDIANAPOLIS
Before the Federal Communications Commission
July 14, 1997
In the Matter of Comcast Social Contract
EX-PARTE COMMENTS OF THE CITY OF INDIANAPOLIS
THE CITY OF INDIANAPOLIS respectfully submits these ex-parte comments to the Federal Communications Commission ("Commission" or FCC). Comcast has been served via certified mail with a copy of these comments.
I. INTRODUCTION
On July 1, 1997, through its legal counsel of Dow, Lohnes & Albertson, filed reply comments to the comments made various municipalities pertaining to the proposed social contract with the FCC. Upon review of the reply comments, the City of Indianapolis was desirous of filing ex-parte comments to seek clarification of Comcast’s intent. Additionally, the City of Indianapolis seeks answers to questions that the City raised in its initial comment filing, but were not addressed or addressed to the City’s satisfaction in the reply comment filing by Comcast.
The City of Indianapolis contacted the FCC the week of July 7 to find out if an ex-parte comments filing would be permissible in this matter. After speaking with John Morton of the Cable Services Bureau, the City found that such would be the case. The City respectfully asks for the Commission to consider its comments and arguments in the best interest of the cable subscribers that are served by Comcast.
II. "DISCUSSION ITEM 1"
THE CITY OF INDIANAPOLIS, along with Sacramento, Tallahassee and six other cities, noted that the language of the proposed social contract would pre-empt the jurisdiction of local franchising authorities (LFAs) to enforce franchise agreements with Comcast (page 11-12 of Contract/Item H./ "In particular, any failure to comply with this Contract shall not be a basis for any denial of a franchise renewal by, or other enforcement action of, any LFA"). The argument, in essence, from the concerned cities is that some of the language in this proposed social contract mirrors language in existing franchises and those under renewal.
The City of Indianapolis has recently completed a renewal with Comcast that calls for a 750Mhz upgrade no later than December 31, 2000. Since the 750 MHZ language in the City’s franchise agreement is mirrored in the proposed Contract, the Commission should recognize the concerns that Indianapolis has with the language as written. For Comcast not to comply with this provision of the franchise agreement could be considered a major breach of the franchise and subject for possible denial of franchise in the next renewal period. Indianapolis, along with the other commenting cities, wishes to reserve the right to enforce its franchise agreements. Pages 11-12/Item H. , as proposed in the contract, negate this. Any language that is mirrored is subject to immediate pre-emption by this agreement. Non-pre-emption only applies to language in franchise agreements that exceeds the provisions of the Contract.
In its reply comments, Comcast contends it has no intention of pre-empting LFA’s enforcement of its franchise agreements and that we eight cities, along with our legal counsels, "misinterpreted Section III.E" of the Contract (Item IV./Page 16 of reply comments). Yet, despite all of what Comcast had intended to say and what their interpretation of the proposed Contract is via their reply comments, they offer no amendments to the Contract to clarify their position for the record. In fact, Comcast urges the FCC to adopt the Contract as submitted with no revisions or amendments (page 26 of reply comments).
It is our understanding in discussions with FCC staff that the reply comments are not a legally binding document. If Comcast seeks to clarify its/FCC’s position, as it attempted to do via its reply comments, then the City of Indianapolis respectfully suggests that the Contract be amended to reflect such. The City of Indianapolis would contend that there should be no pre-emption of mirrored language and strongly opposes Item H of the Contract, as written.
Franchise agreements are written locally, with the community in mind. Local ascertainment studies are performed so that the franchise agreement reflects community wishes. The proposed social contract is continued evidence of the cable industry and the federal government working hand in hand to centralize the process as a matter of convenience to the cable industry. We strongly oppose this as it is certainly not in the best interest of the cable subscribers of the Indianapolis/Marion County area that our LFA serves.
Additionally, for Comcast to suggest in its reply comments that it is not "compelled to continue its investment in plant infrastructure on a given schedule" is incorrect. The Indianapolis/Marion County franchise agreement, as has been stated heretofore, has Comcast scheduled to complete its upgrade by December 31, 2000. Again, the proposed language of the Contract would pre-empt our authority to hold Comcast to compliance with this commitment since this mirrors provisions of the Contract. The commenting cities did not misinterpret the pre-emption language of the proposed social contract as Comcast would suggest in its reply comments.
III. "DISCUSSION ITEM 2"
The City of Indianapolis in its comment June 10 filing to the proposed social contract suggested that Comcast do an outreach program to the schools and libraries that are to be the a major player in the Consumer Benefits provisions of this Contract (page 2/paragraph one). That in fact, the onus should be placed squarely on the shoulders of Comcast in ensuring that these entities be contacted, hooked up and educated. Not the other way around as the proposed social contract would state (cable service item 2a-page 8/Internet access 2f-page 9). All services must be requested by schools and libraries.
In its reply comments Comcast speaks to this issue by boasting about its pro-active approach to this matter. That "in fact, Comcast is already notifying schools and libraries of these services as the Company activates plant and introduces commercial modem service in the communities which it serves" (Page 24/VI.). We applaud Comcast in their pro-active approach in contacting libraries and schools as to these Consumer Benefits. In that spirit, we repeat our earlier assertion that Comcast be responsible for the contact to schools and libraries and that these institutions should not have to request the Consumer Benefits to trigger the implementation of this all important provision of the Contract. For the consumer......these benefits are at the heart of the socially redeeming aspects of this Contract. We ask that the Commission amend the Contract to reflect the greatest possible potential for these discussed benefits.
The City of Indianapolis, in its June 10 comment filing, suggested the decentralization of the enforcement of the Consumer Benefit provisions of this Contract. Keeping in mind that these benefits are much more easily monitored by municipalities is a given. Furthermore, given the FCC’s workload, to monitor the implementation of the Consumer Benefits would be impossible. The FCC would have to go by the annual report submitted by Comcast for their primary information and that does not allow for independent verification.
In responding to this suggestion, Comcast has stated in its reply comments that this Contract is between Comcast and the FCC and that it is appropriate for the FCC "to assess non-compliance with the terms of the contract on a global, rather than on a franchise by franchise basis" (reply comments by Comcast/Item IV-page 17). The language, as the cable industry is quick to point out, gives the FCC broad authority when it comes to the execution of an issue that may be opposed by municipalities, that same language can also be used by the FCC in this instance to see to it that there is meaningful enforcement and compliance of the Consumer Benefit provisions of this Contract by delegating that monitoring to LFA’s. As the LFA’s have an on-going relationship with libraries and schools anyway by virtue of community ascertainment performed during the renewals, it would be consistent for the LFAs to contact schools and libraries to see if they are receiving the benefits as outlined in the social contract. The LFAs would simply monitor the Consumer Benefits and outline the lack of compliance to the FCC.
As we pointed out in our June 10 comments, the July 13 edition of Cable World (page 14) makes reference to Time Warner’s Social Contract stipulations for monthly educational training as having the appearance of a "one shot deal" instead. Is the FCC in the habit of approving social contracts for the benefit of the cable industry only? Where are the teeth for enforcement, compliance and monitoring? That the "Commission is authorized to perform any and all acts.....not inconsistent with the Communications Act, as may be necessary in the execution of its functions" would include consideration by prescribing to the monitoring and compliance enforcement as suggested by the City of Indianapolis. We ask that the Commission amend the social contract on this issue as suggested.
With regard to the meaningful implementation of the Consumer Benefits provisions, it should be noted that FCC Chairman Reed Hundt, as he has reflected upon his accomplishments at the FCC, suggested his greatest accomplishment to be the wiring of the schools and libraries. Yet, without meaningful monitoring and enforcement, this accomplishment rings hollow as it is anybody’s guess as to the extent that the Consumer Benefits in any social contract have been met.
To further assist LFAs in this regard, it was suggested by the City of Indianapolis that Comcast provide their LFA with a local report on the progress. We understand that Comcast HQ is to provide an annual report to the FCC per the language in the Contract. What we are suggesting is that there is a gathering process to that report as the MSO’s submit their local version of that report into one comprehensive report. It is the local report that is descriptive of Indianapolis and Marion County that we desire to review. We have no interest in the national, annual report as Comcast’s reply comments would suggest. We apologize if our comments were misconstrued. The City believes that it would not be too "burdensome" for the local Comcast operator to submit its portion of the Contract Report to the LFA as it could be used for verification by the LFA and ultimately assist the FCC in meaningful compliance and enforcement of this Contract.
The City of Indianapolis asks the Commission’s due consideration in incorporating our comments and implementing them in the form of amendments to the proposed Comcast Social Contract.
Respectfully submitted,
Rick Maultra
Director
Cable Communications Agency
City of Indianapolis
G19 City-County Building
200 E. Washington Street
Indianapolis, IN 46204
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