The U.S. First Circuit Court of Appeals rejected an appeal by cable companies and upheld a 2019 Maine law that will keep Lincoln County Television at Spectrum’s channel 7 and out of what critics call “digital Siberia” on Tuesday, Aug. 3.
LCTV President Larry Sidelinger said that this means that cable companies essentially can’t discriminate against public, educational, and governmental access television stations anymore and have to include them in the same numerical sequence location as the network broadcast stations.
“The crux of the matter is that now cable companies have to treat public access stations the same as NBC or ABC,” Sidelinger said.
Spectrum, which is owned by Charter Communications, Inc., is the only cable television service available in Lincoln County. Tidewater Telecom, of Nobleboro, is an internet service provider in the county and also offers O.P.E.N. View TV online.
Sidelinger said that about one week after the appeals decision was issued, the LCTV signal broadcasted by Spectrum improved.
In November 2017, Spectrum changed its channel lineup to move public-access stations from single-digit channel numbers into the 1300s or higher – what critics refer to as “digital Siberia.” This moved LCTV from Channel 7 to Channel 1301.
In response, the Community Television Association of Maine helped draft and push for the passage of L.D. 1371, “An Act To Ensure Nondiscriminatory Treatment of Public, Educational and Governmental Access Channels by Cable System Operators,” which was signed into law June 7, 2019.
The Internet and Television Association, which represents cable operators, challenged the law in 2020 and it was upheld by U.S. District Court Judge Nancy Torresen, who ordered the cable companies to return public access stations to their original channels. The appeals court affirmed this ruling.
The law also requires cable companies to provide service to parts of towns with at least 15 homes per mile, broadcast locally produced content in the same format it is recorded in—such as high definition—and list public access program information on channel guides.
Maine Attorney General Aaron Frey, who defended the law, applauded the decision in a statement.
“Community-run television stations are a priceless public resource, and the court’s ruling will go far in ensuring their continuing vitality by protecting against marginalization by cable television operators,” Frey said.
Sidelinger said he is also working to educate the ten towns in Lincoln County that receive LCTV about how the towns can renegotiate the amount of franchise fees they receive from cable companies.
Franchise fees are paid to cities and towns by cable and internet providers for the use of public rights of way for things like running cables. Federal law says that a municipality can receive up to 5% of a cable company’s gross revenue in franchise fees.
The fees are tacked onto customers’ cable bills and then passed along to the towns. Towns can then choose how much of the franchise fees they would like to contribute to the local public access station each year.
“What people have to understand is it’s not tax dollars. It’s a pass-through from the cable companies,” Sidelinger said.
Most towns currently get 3% and are locked into 10- to 15-year contracts, he added. However, the contracts can be renegotiated when they expire.
Newcastle Town Manager Sarah Macy said on Tuesday, Aug. 17, that after meeting with Sidelinger and town attorney Peter Drum, she sent a certified letter to Spectrum to begin the renegotiation process and has not yet heard back.
A law passed by the Maine legislature and vetoed by Gov. Janet Mills on June 25, L.D. 920, “An Act to Promote Oversight of and Competitive Parity among Video Service Providers,” would have required video service providers to pay a franchise fee equal to 5% of gross annual revenue to all municipalities in Maine.
In her veto message, Mills cited the possibility that the bill could increase costs for consumers and erode local control by granting more oversight of video service providers to the Public Utilities Commission.
Sidelinger said that it is unknown what percentage of revenue Spectrum is charging consumers for franchise fees because the company often does not provide the data stipulated in the franchise agreements with municipalities, such as the number of subscribers in town or a full accounting of gross revenue.
He said the towns have no other recourse than taking the matter to state court and through costly litigation. He said that internet and cable companies should be regulated in the state of Maine the same as electricity and landline telephones are by the Public Utilities Commission.
“Cable companies and internet companies have no oversight from the state,” Sidelinger said.
He said that L.D. 920 would have given municipalities a mechanism to challenge cable companies and ensure they are living up to franchise agreements, giving them more “local control.”
Sidelinger mentioned that sometimes the cable companies do not even pay the towns the amount required by the franchise agreements.
News Center Maine reported in September 2020 that an audit alleged Spectrum failed to pay more than $142,000 in franchise fees to nine towns in Southern Maine through 2017 and 2018.
In a statement to News Center Maine, Spectrum Senior Director of Northeast Communications Lara Pitchard said “cable franchise-fee audits like these are routine, and we are reviewing the auditor’s claims and plan to respond to the communities soon.”
