REPOSTED: Consumer Choice for Television Act: What They Haven’t Told Us

In light of the recent discussion about Alexandria’s Government Access Channel– a discussion that, as other commenters suggested, amounts to nothing more than a colossal distraction, a dereliction of responsibility, and a complete waste of time–and the City of Alexandria’s “alleged” ability to negotiate or renegotiate the terms and conditions of its franchise agreement with Suddenlink, I think it’s instructive to remember that, due to Act 433, signed into law by Governor Jindal in 2008, Alexandria no longer has the ability to negotiate cable franchise agreements, despite what others may insist. (By the way, of course I understand that federal statutes provide for PEG channels; the issue here, as it has been raised in the context of Channel Four in Alexandria, is whether or not the franchise agreement can be renegotiated by the City. It can’t– again, despite what others may insist).

I agree wholeheartedly that the City of Alexandria should be able to negotiate its own cable franchise agreement with Suddenlink, and while on the verge of attempting to do just that, Governor Jindal signed Act 433 into law, effectively stripping the City of its ability. I completely disagree, however, with any contention or notion that the actions of the City Administration are violative of the rules and regulations that govern PEG channels, and I think you’d be hard-pressed to make a factual case.

The argument, insofar as I can tell, seems to be that the City Council is the proprietor of Channel Four (Alexandria’s Government Access Television Channel or GATV), and as such, that the Council President can somehow control televised content or speech from other duly-elected officials, particularly content or speech criticizing him and other Councilmembers. It’s a brazenly ridiculous and insidious claim, and no doubt, it’s based on a fundamental misunderstanding of the separation of the executive and legislative branches of government. Fundamentally (and I recognize this may sound absurdly simplistic to some), it likely comes down to this: The control room for Channel Four is located directly adjacent to Council Chambers, and because the vast majority of content that airs on GATV is recorded in the Council Chambers, this makes logistical sense.

The logical underpinnings of Councilman Johnson’s stance likely have little to do with the City’s contractual obligations to Suddenlink or the regulations that govern PEG channels (hence his need to consult with the Federal Communications Commission) and everything to do with the proximity of his office to the control room; the control room is on the Council’s turf, and ergo, the Council must, by virtue of the control room’s location, somehow be empowered to administer GATV. Again, it’s a fundamental misunderstanding of the separation of powers; the administration administers contracts and supervises employees, unless specifically stated otherwise by the City Charter. The location of the control room is immaterial. If it were, instead, located in a small room behind the Mayor’s Office, its obligations and duties would not materially or substantially change.

The City Council doesn’t own or operate Channel Four; the City of Alexandria is responsible for its operation, and under our City Charter, the Mayor is the chief executive of the City Administration. This entire discussion, unfortunately, obscures the underlying questions. Ultimately, this is about two, interrelated things: An attempt to stifle our fundamental right to hear our duly-elected officials discuss the issues that affect all of us and the fundamental right of those officials to properly exercise their freedom of speech. This is not about policy; it’s about content that Roosevelt Johnson, his like-minded Councilmen, and their supporters don’t want others to hear– in a word, criticism. Mr. Johnson, obviously, has never sat down and watched C-SPAN or, for that matter, the British Parliament, which is even more contentious. Quoting:

The weekly briefings held by Roy, in which the mayor regularly disputes what he calls “demagoguery” by council members and at times criticizes the leadership of President Johnson and Vice President Ed Larvadain III, have drawn the ire of some council members.

Johnson said he wants to investigate “libel, slander and misuse” of Channel 4 and — after checking with the FCC — wants the council to adopt a policy for using the channel. Council members, particularly Johnson, have talked about expanding the use of Channel 4 and adopting policies for several years.

I don’t need to guess what Roosevelt Johnson wants Channel Four to be, and I don’t think this conversation benefits him or Councilman Edward Larvadain III, who, as The Town Talk pointed out, wanted the City to spend $300,000 out of its “rainy day” fund to pay for an out-of-town “consultant” to develop Channel Four. The Town Talk was spot-on for recalling this, particularly considering Larvadain’s recent rants about government spending and his masochistic crusade against the continued operations of the Alexander Fulton Hotel and the livelihoods of the fifty-plus, private-sector employees who are currently working to ensure for the best possible sales price for a City-owned asset.

From L-R, Councilman Ed Larvadain III, State Representative Herbert Dixon, and former Councilman Myron Keith Lawson

The paper neglected to mention– though I can’t fault the them for this– that Roosevelt Johnson had once lobbied the City to hire Mitzi Gibson (now a Councilwoman and

formerly Johnson’s colleague and campaign consultant) to assist in programming on Channel Four, a request that obviously never got anywhere. So, to me, it’s particularly rich and ironic that Councilwoman Gibson now attempts to lecture people on the proper uses of a Government Access channel. (In fairness to Councilwoman Gibson, I am not aware of her ever lobbying for a paid position on Channel Four, but I recall her name being brought up repeatedly by Councilman Johnson, prior to her election). This, of course, is in addition to the $300,000 Edward Larvadain III had wanted to spend with a group out of Monroe.

And yet, they want the FCC to investigate because the Mayor holds televised press briefings. With all due respect to the City Council, hilarious. While the FCC is at it, maybe they could also look at whether or not the Council repeatedly violates its own ordinances regarding time limits for citizens exercising their rights during open meetings, because, as Mayor Roy suggested, it seems abundantly clear that these ordinances are not uniformly enforced.

Either way, back to my main point:

Originally posted a little over three years ago, on September 13, 2008 (bold added for emphasis).

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In late June of this year, Louisiana Governor Bobby Jindal signed into law SB 807, now Act 433 and also known by the Orwellian moniker, “The Consumer Choice for Television Act.” The bill was introduced by State Senator Ann Duplessis and was touted as a way of increasing competition and choice among cable companies in Louisiana; this, ostensibly, will benefit the consumer.

It’s unclear how, exactly, this Act will increase competition and choice, but we do know one thing: It had the strong support and backing of big telecommunications companies like AT&T and their related lobbyists and PACs, and its passage here in Louisiana is a feat they had already accomplished in 19 other states.

Essentially, this Act is a piece of deregulation legislation; it strips municipal and parish governments from negotiating their own cable franchise agreements and places the authority in the hands of the Secretary of State– who, from the looks of it, will only serve to rubber-stamp applications.

There are some real legal and Constitutional problems with the Act, which is why the Louisiana Municipal Association along with the State Police Jury Association, among others, are mounting a challenge.

One of the principal problems with the Act is its conflicts with municipalities who are governed by a Home Rule Charter. The Act specifically exempted municipalities whose Charter was enacted prior to 1974 (i.e. New Orleans and Baton Rouge), yet it makes no mention of how it will address municipalities who passed their Charters after 1974. Interestingly, the exemption of New Orleans (home of the State Senator who introduced the bill) and Baton Rouge undercuts one of the principle arguments supporting the bill– that it will “streamline” the application process and place all negotiations in the hands of the State. Baton Rouge and New Orleans account for between 15% – 20% of the State’s population. Quoting from the Act:

With respect to local governmental subdivisions which have home rule charters adopted after the Constitution of Louisiana was adopted on April 20, 1974, and which are governed by Article VI, Section 5 of the Constitution of  Louisiana and with respect to other local governmental subdivisions without home rule charters, such local governmental subdivisions are denied the authority to adopt ordinances that are inconsistent with the provisions of this Chapter.

Why April 20, 1974? Because that’s the day that the “new” Louisiana Constitution ratified into law, and among other things, the Constitution provides (paraphrasing):

The 1974 constitution granted broad home rule authority to parishes and municipalities and reversed the traditional concept of local government as a “creature of the state” possessing only delegated authority.

New Orleans’s charter was passed in 1952; Baton Rouge’s was passed in 1947. Sure, it’s a technicality, but it’s an important one.

To be sure, I am not a lawyer, but on the face of it, I am not sure how this Act could supersede the authority given to Home Rule Charter municipalities based on whether or not their Charters were passed prior to the ratification of the State Constitution.

Regardless, this Act doesn’t appear to be truly concerned with increasing competition; it appears to be nothing more than a way to allow telecommunications companies to avoid negotiating their agreements with the very communities they serve.

The Organic Consumer’s Association puts it this way (bold mine):

Video Franchising: Louisiana legislators, under pressure from major service providers, enacted SB 807, a statewide video franchising bill.  Telecommunication service providers argue that these franchises, which create a single statewide simplified process of offering cable services, could have benefits for the public, such as slightly increasing competition.  The Louisiana legislation, however, failed to include certain consumer protections and community benefits, such as support for Public Educational and Government (PEG) stations, protection of municipal control and the assurance of required build-out to underserved and un-served areas, and is therefore not in the public interest.

Specifically:

Among the worst provisions:

• Build-out requirements are completely prohibited:  A key component of why service providers favor statewide franchises is they provide them the ability to selectively deploy new network technology. Under Senate Bill 807, there is no community-wide build out obligation.
• Reduction of municipal control and ability to negotiate for community benefits.
• No substantial PEG protections.

Some, such as Jeffrey Sadow, have attempted to argue that opposition to this Act is merely the result of cynical, money-grubbing municipalities who want to “milk consumers,” which, in my personal opinion, completely and totally misses the point. Ironically, Sadow begins his argument by cautioning people to follow the money:

One reliable way to find out political motives – especially when somebody is claiming they are doing something for reasons other than this – is to follow the money. And when money is involved, you can be sure the citizenry is getting the short end of a deal.

It is ironic because this Act was one of the most heavily-lobbied pieces of legislation in the previous session, and if you were to take Sadow’s suggestion seriously, you’d find that hundreds of thousands if not millions of dollars have been expended by telecommunication companies and their related advocacy groups, not by local governments.

The opposition has nothing to do with municipalities wanting more money; it has everything to do with them wanting to ensure that cable companies– companies that rely on local infrastructure (like telephone polls) and depend on local support– are held accountable to the unique needs and demands of the communities they serve.

Ultimately, municipal leaders– just like State leaders– understand that telecoms typically pass down increased costs back to the consumer, and ultimately, municipal leaders recognize that their communities need cable companies as much as those companies need those communities.

For extensive coverage of these issues, check out the Lafayette Pro Fiber blog.