Minutes 07/05/1984 - Laserfiche WebLink

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~78 THURSDAY JULY 5, 1984 Martinsville Cablevision is now claiming, through its counsel, that any agreement on its part to carry any stations other than those entitled to mandatory carriage is void as being contrary to the rules of the Federal Communication Commission. I would agree with him on this point to an extent. For instance, an agreement by the cable company to carry a station on its pri- mary service, when FCC rules permit that station to be carried on the secondary tier of service, is void. Moreover, an agree- ment by a cable company not to carry any stations, unless approved by the municipality where FCC rules permit the cable company to carry those stations, would be also void. However, there is some precedent for the proposition that a cable com- pany and a municipality may enter into an agreement which re- quires the cable company to carry certain signals if the cable company is permitted by FCC rules to carry same. The authority for this statement is a recent decision of the U. S. Supreme Court, announced on June 18, 1984, Capital Cities Cable, Inc. v. Crisp, which quotes the following statement by the FCC made in clarification of its Rules as follows: "While the franchisor (the municipality) might want to include a provision requiring the operator to carryall signals allowable under our rules, that is as far as the franchisor can or should go." In other words, an agreement by a cable company to carry certain signals, which agreement does not contravene any rules of the FCC, is not void. This rule was promulgated at a time when cable companies were only permitted to carry three network stations, and two independents, whereas they are presently permitted to carry about anything they want to. However, even though the fac- tual context which gave rise to this rule no longer exists, it could be argued that the principle of the rule was still valid, that is, that a contractual obligation by a cable company to carry certain signals, which does not restrict its right to carry others, as well, and which does not prohibit it from doing any- thing permitted by FCC rules, is not void, and is in fact enforce- able. A phone call to one Stephen R. Ross, an FCC attorney who is Chief of its Cable Television Branch, to ascertain if the above quoted rule, or some modification thereof to reflect the changed con- ditions that have occurred since its promulgation, is still in effect, has not been returned as this is being dictated. However, I do not need an answer from him in order to make my recommendation in this matter. The basic reason for the granting of the franchise approximately two years ago was the agreement on the part of the cable company to furnish the sec- ondary tier of service which it referred to as its super service, inasmuch as it was already furnishing the basic service. If the contention of its counsel is correct, it has no legal obligation whatsoever to carry any of the stations that it listed in its