HR 1746: The Community Access Preservation Act

Reps. Tammy Baldwin (D-WI) and Steve LaTourette (R-Oh) have introduced H.R. 3745, the Community Access Preservation Act. The legislation, if adopted, would restore PEG funding eliminated by some state laws, allow PEG funding to be used for operating expenses, limit operators from discriminating against PEG channels, and make it clear that any entity that provides video services via facilities in the rights of way is subject to the Cable Act's franchising requirements.

What follows is a short briefing paper on the Act, which we hope you will use to educate your congressional delegation and seek their co-sponsorship of the bill. The language of the bill is posted on http://www.alliancecm.org/

Summary of the Community Access Preservation Act

Public, educational and government ("PEG") channels permit schools, governments, individuals and groups to provide and receive information about local events, emergencies, and issues. The channels encourage creation of local programming by civic groups and non-profits, cover government and school meetings, and promote localism and civic engagement. The CAP Act responds to four immediate threats to PEG and these critical local communications.

1. Ensures Funding and Eliminates Unnecessary Limits on the Use of PEG funds

Issue: Under the Cable Act, a cable operator and a local community may negotiate for PEG support in addition to the franchise fee payments for use of public rights of way. The FCC recently ruled, subject to some important exceptions, that this PEG support may only be used for facilities and equipment, and not for PEG operating expenses.

Effect: Some communities are closing PEG facilities because there are no funds to operate them.

Solution: The bill amends the Act to ensure that PEG fees can be used for any PEG purpose and establishes Cable operator must provide greater of:

2. Discriminatory Treatment of PEG channels.

Issue: The Cable Act provides that PEG channels should be free from cable operator interference and available to all cable subscribers. Accordingly, operators historically have provided local commercial television signals and PEG in the same manner, to all subscribers, and without additional charges. Some operators are now providing PEG channels that are less accessible, lower quality, missing basic functionality and higher priced.

Effect: PEG is less accessible to all subscribers, and the most vulnerable viewers may lose access to basic local information altogether.

Solution: The bill reaffirms that operators must deliver PEG channels to subscribers without additional charges, and without “material degradation and without altering or removing content or data” and such signals shall be viewable “by every subscriber of the cable system without additional service or equipment charges…”.

3. Preservation of PEG Support and Localism

Issue: Federal law envisioned that PEG requirements would be established on a community-by-community basis. Several States, while intending to preserve PEG, adopted statewide video franchising standards without regard to local needs and interests.

Effect: Statewide standards are resulting in widespread elimination of PEG.

Solution: Immediate action is needed to preserve PEG to permit Congress to review the impact of these changes on local programming. The FCC is directed to investigate and to report to Congress on the impact of State video service franchising laws since 2005 on PEG. To ensure PEG is preserved, each cable operator must provide the channels and critical facilities it had been providing historically. Operators must make ongoing PEG support payments equal to the greater of the cash payment required under State law, or the value of the PEG support it historically provided.

4. Definition of Cable System

Issue: Entities that provide video services via wired facilities in the rights of way are intended to be subject to Cable Act rules, regardless of the transmission protocol used to deliver service, but some claim that the law is unclear, creating doubt as to where the rules apply.

Solution: The Act is amended to ensure it is technologically neutral. Providers using wired facilities in the rights of way are treated similarly and are subject to similar PEG requirements.

Gerry
Gerard Lavery Lederer
glederer@millervaneaton.com
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