Richard Moore

        I'm posting this for two reasons.  First, it is of immediate
interest, re/ cable regulation.   Second, it exemplifies what we can expect
UNIVERSALLY in electronic media as all channels become monopolized (like
today's cable) and as our representative government is pushed more and more
out of playing a role by deregulation mania.

        For you libertarians out there, who will undoubtedly point out that
the FCC is partly to blame, I ask: would your solution to crime be to
eliminate all police forces? -- that's what deregulation mania is really
about, as regards corporate misbehavior.


Date: Sat, 20 Apr 1996
From: "Thomas M. Schaefer" <•••@••.•••>
To: Multiple recipients of list <•••@••.•••>
Subject: Cable Leased Access: Class Action Lawsuit


Thank you very much for your interest in this important media democracy

The cable industry has a strangle-hold on the distribution of
television, preventing thousands of new and small video producers and
animators from exhibiting their work.  We would like you to help create
a legal action fund that will help break this strangle-hold, putting
over a billion dollars a year into the equipment budgets of
up-and-coming video producers.

The law (47 USC 532) provides that channel capacity on cable systems
shall be made available for affordable commercial lease. This is
different than public, government, or educational access, in that it
accommodates commercial programs and therefore allows money to be made.
Cable operators are required to lease roughly 10 to 15% of their
discretionary capacity for about $1 per thousand subscribing households
per hour. (See the implementing FCC rules 47 CFR 76.970-76.975 for a
more precise statement.) The cable operators have been given ample time
and warning by the FCC to obey the law, but many have chosen to thwart
it using a number of tactics including: 1) refusing to quote hourly
rates, 2) refusing to state terms, conditions, and channel availability,
3) refusing to make capacity available, 4) demanding excessive deposits
and E&O insurance, 5) making only odd hours available, 6) moving the air
time of regular programs arbitrarily and at the last minute, 7) putting
programs on the least desirable channels, 8) generally treating leased
access programmers like dirt and tarnishing their relations and
undermining their marketing efforts with sponsoring businesses.

The FCC has been slow enforcing the law and its own rules, generally
siding with the cable operators in any dispute. (In fact, the FCC often
acts as an industry lobby within the government as the commissioners and
commission employees posture for lucrative industry jobs.) It is time
for legal action to give the law teeth. We are organizing a class action
civil law suit, documenting and bringing forward a number of
representative violations by offending cable operators.  Faced with a
serious legal challenge, we believe some operators will settle out of
court, allowing litigation against the unrepentant from a stronger
position. If this strategy is successful, several mostly locally
programmed channels will appear in almost every community across the
country, creating billions of dollars a year in new video production.

But we need your help. The law, as it stands now, only allows
programmers to recover ACTUAL damages, which are difficult to
demonstrate when capacity isn't being made available. Few new and small
programmers have the individual resources to go it alone against the
unlimited resources of the cable industry. We are establishing a
non-profit mechanism to accept your tax-deductible contribution to a
legal action fund that will make this class action law suit viable. Your
contribution can be instrumental in creating a flowering of small-scale
alternative programs, with the potential for creativity and innovation
not easy to come by amongst the mega-media cartel. This outlet will
incentivise the purchase and use of the profusion of desk-top video
hardware and software now coming to market. Further, the creation of
video production at the community level can help strengthen the local
social institutions and social capital that are usually weakened by
big-media television. Please, help give new and small producers a voice
on television.

60 million US households receive television through cable.  For the
majority of these, it is the only way they receive television.   The law
requires that cable operators make roughly 10% of their channel capacity
available for affordable commercial lease.  Using a variety of tactics,
the majority of the cable industry has thwarted this law.   There are
roughly 1,200 cable operators who would be leasing an average of five
channels each if this were not the case. Each of those channels could
support $500,000 of video production annually, mostly programmed by
small local producers.  Combined, these video production businesses
could be spending over a billion dollars on equipment, each year.

New and small producers do not have the money or time to pursue complex
and expensive FCC complaints and federal civil litigation against cable
operators with unlimited resources.  We therefore request that you
consider helping to create a legal action fund.  The fund will pay for a
class action law suit against offending cable operators, and then use
the precedent set in this case to vigorously defend small producers
right to lease access.

Concentration of media access and production resources, made worse by
recent mergers, endangers the video revolution being enabled by new
products. Without the means to exhibit their productions, few new and
small video producers will survive in competition against the mega-media
cartel.  The equipment purchases of the media giants are concentrated
towards a few established manufacturers.  It is in your self interest to
broaden the base of local producers.

To learn more about how you can help, visit our web page
at: or call us at (209) 369-9181.

Thomas M. Schaefer

Date: Tue, 23 Apr 1996
From: •••@••.••• (John Schwartz)
To: Multiple recipients of list <•••@••.•••>
Subject: Re: Cable Leased Access: Class Action Lawsuit

This cause is just, and the essence of the complaint is valid.  But
the tactics urged are ill-advised.  The Cable Act states that rates
set by cable operators are presumed reasonable in both lawsuits and
FCC actions; further, this posting correctly notes that only actual
damages can be secured, even if the case succeeds.  Such litigation
will be very costly, and it will scare no one.

The real hope is that the FCC will propound rules that make leased
access affordable.  (Although there have been exceptions, the posting
is largely inaccurate when it says that the FCC hasn't enforced its
own rules; rather, the FCC has adopted very ineffective rules.)

We are now in the midst of a comment period on a Further Notice of
Proposed Rulemaking concerning leased access.  At the heart of the
FCC's proposed rules is a very good concept:  that initial rates
should be based upon a cable operator's "net opporunity costs."  Such
costs are likely to be very reasonable for basic cable-type programmers.

Comments are due 5/15 and replies 5/31.  I assume this notice is posted
at the FCC's web site:

It is _much_ more realistic to seek effective leased access through this
rulemaking than through a lawsuit that is hobbled by the provisions of
the statute.


John B. Schwartz                           •••@••.•••
P.O. Box 6060                              voice 303-442-2707
Boulder, CO  80306                         FAX   303-442-6472

 Posted by Richard K. Moore  -  •••@••.•••  -  Wexford, Ireland
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