Reply #60: sorry, but you're wrong about cable franchises and about newspapers

[onenote]

First, you apparently need to go back and read Miami Herald v. Tornillo, the 1974 Supreme Court case that held that the fact that local newspapers were becoming monopolies didn't justify government regulation. You say that the reason for the decision was that there were many independent radio and tv stations. WRONG. In fact, here how the case described the "marketplace of ideas":

"The elimination of competing newspapers in most of our large cities, and the concentration of control of media that results from the only newspaper's being owned by the same interests which own a television station and a radio station, are important components of this trend toward concentration of control of outlets to inform the public. The result of these vast changes has been to place in a few hands the power to inform the American people and shape public opinion. Much of the editorial opinion and commentary that is printed is that of syndicated columnists distributed nationwide and, as a result, we are told, on national and world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive analysis. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the public has lost any ability to respond or to contribute in a meaningful way to the debate on issues. The monopoly of the means of communication allows for little or no critical analysis of the media except in professional journals of very limited readership."

In other words, regulation was being advocated because of the concentration of media. And yet, a unanimous Supreme Court held that notwithstanding the concentration occurring in the communications marketplace, a government mandated right of access to have a newspaper print something for a third party violated teh First Amendment.


Now, on to your mistaken views on cable:

A cable franchise is only needed, by law, if rights of way are crossed. And a franchise is not even needed if the cable system was operating without a franchise on July 1, 1984. Its the crossing of the rights of way that gives the local authorities the "police power" to license, not a "natural monopoly theory." Indeed, while local governments are permitted to use this authority to regulate certain aspects of the provision of cable service (build out requirements, customer sevice etc), they are barred from regulating content. And all there are no minimum requirements for what goes into a franchise: it can be as simple as a permit authroizing the construction of the cable system. Among other things, cable systems aren't "natural monopolies": currently all cable systems are subject to competition from two satellite providers and increasingly from wireline cable systems operated by Verizon or ATT. Since 1992, its been illegal for a local franchising authority to award an exclusive franchise. And the law expressly provides that local governments may not regulate the content of the service provided by a cable system.

I've been practicing communications law for 30 years, and believe me, I'm am so NOT off the mark.

Here are some citations for you:

47 USC Sec. 602(7)(B): the term "cable system" does not include "a facility that serves subscrdibers without using any public right of way"
47 USC Sec. 602(9): a "franchise" is an authorization issued by a franchising authority whether such authorization is designated as a franchise, permit, license, resolution, contract, certificate, agreement, or otherwise, which authorizes the construction or operation of a cable system.
47 USC Sec. 621(a)(1): a franchising authority may award one or more franchises and "may not grant an exclusive franchise"
47 USC Sec 621(b)(1): exclusion from franchise requirement for systems operating july 1, 1984.
47 USC Sec. 624 (b): barring local franchising authority from establishing requirements for video programming.
47 USC Sec. 624(f): barring any federal, state or local government from imposing "requirements regarding the provision or content of cable services" except as expressly provided elsewhere in the law.

I could go on, but you either get the picture or you don't.