LAPA Leased Access Programmers Association

Time Warner Reneges on Internet Access for LAP’er

WNTS, a small leased access programmer (LAPer) in Upstate New York was told that internet access would be provided through Time Warner’s headend in house system but they would need to provide a VPN router to be located at the headend location.

Time Warner claims this VPN service is necessary to protect their network. If you are familiar with VPN (Virtual Private Networking) service you know that it is designed to protect the data that the VPN user is transmitting over the connection, something that is completely not necessary for WNTS as all of their content is for public viewing. They could easily have restricted access and kept their network security without the VPN connection. That being said, WNTS made the decision to comply with the demand purchasing a “Sonic Wall” brand router as recommended by Time Warner.

There were problems however making the remote access software work with VPN so, already behind their projected start schedule, WNTS decided to purchase internet service until the bugs could be worked out of the VPN environment. Although Time Warner offers basic internet service for $19.95, a service that provided bandwidth more than adequate for WNTS needs, they were forced to pay $99.00 per month because they had a business address for the service, which was of course the Time Warner headend address.

Finally after purchasing the requested equipment and spending weeks of work ironing out the bugs and adapting the remote access software to work with the VPN, WNTS informed Time Warner it was ready to install the VPN router for the in house network as requested. Time Warner now however informs WNTS that it will no longer offer internet access for them.

If a LAP’er caused the cable provider the slightest amount of work, even the slight amount of labor needed to chang a DVD, the LAP’er is immediately slapped with a labor charge.There is the absurd but true instance posted in this site where Time Warner charged WNTS for an hour of technical support to send them an email informing them that they would not be able to provide them with technical support.

The simple fact is Time Warner caused WNTS to bear the expense of purchasing special equipment and spending dozens of hours changing their system to work in the VPN environment, a requirement ridiculous to begin with, and then backing out of the service arrangement with no consequence or repercussions on the cable service provider.

The question is, “do they do this just to cause undue expense and hardship on the leased access programmer?” If so, it wouldn’t be the only steps they’ve taken that seem to inhibit the LAPer simply exercising the right to leased access as provided by Congress. Sadly, to make matters worse, it is nearly impossible for LAPers to get any assistance from FCC, the agency that is supposed to insure cable operators provide leased access airtime under the law and FCC’s own regulations and rules.

At issue here is which party is disregarding the wishes of Congress, Time Warner, FCC, or both?

How FCC’s Media Bureau aids cable in suppressing leased access.

While reviewing the voluminous files I’ve compiled on behalf of our national leased access programmers association I came across some very interesting information dating back to what Congress wanted for leased access.

In a file labeled “A Chronological View of Leased Access” I found that in 1992 the FCC Commission itself was reported to be “concerned that cable operators have financial incentives to refuse leased access channel capacity to programmers whose services may compete with services already carried on the cable system, especially when the cable operator has a financial interest in the programming services it carries.”The report says the Senate Commerce Committee largely agreed. The report in LAPA’s files states: “Leased access was intended to “remedy market power in the cable industry.”Specifically, leased access was “a safety valve for programmers who may otherwise be subject to a cable operator’s market power and who may be denied access (or) given access on unfavorable terms”.H.R. Rep. No 92, 102nd Cong., Sess. 30 (1991).

 

The statutory commercial leased access provisions are intended to provide programmers with a "genuine outlet" for their programming.According to the legislative history of the 1992 amendments to Section 612, the Commission should ensure that programmers are carried on channel locations that "most subscribers actually use,"

 

Now fast forward to 2008 when FCC’s Media Bureau ruled it was permissible for cable operators to place leased access programming on any tier with more than 50% of the total subscribers.This was done despite the wording in Sec. 76.971Commercial leased access terms and conditions.(a) (1)Cable operators shall place leased access programmers that request access to a tier actually used by most subscribers on any tier that has a subscriber penetration of more than 50 percent

 

After the Media Bureau made their placement ruling in early 2008, Assistant Bureau chief, Nancy Murphy, told me the phrase ‘actually used by most’ had no meaning in the published rule.

 

Following the disastrous Gulf of Mexico oil spill it was discovered the U.S. Minerals Management Services had developed such a cozy relationship with the oil industry so as to allow the industry to ‘self-regulate’ itself.I fear the same has long been FCC’s Media Bureau’s approach to cable as regards leased access.

 

Let me cite some examples of where this seems obvious.

 

Not too many months after this ruling we learned a long-time LAPer (leased access programmer) had his programming shifted from analog to a digital tier and as a result his monthly revenue, compared to the previous year, feLL over 40%. If you’re wondering why such a significant decrease all you need do is recognize the local ad insert sales team was offering commercials in channels reaching 100% of the site’s subscribers while the LAPer only reached 60 some odd.

 

If you’re a LAPer or contemplating becoming one you need to be fully aware the greatest competition to our industry is the cable operator’s own local ad insert sales.Its’ odd that FCC’s Media Bureau could not see that by allowing sites to place us on digital tiers immediately increases the cable operator’s ‘market power’ enabling them to make better offers to those same local businesses a LAPer depends on.

 

Not too long ago a high-ranking officer with a significant MSO shared the following tidbit with a LAPer that was being shifted to a less desirable channel—the third such shift inside two years.

Here’s what the officer wrote: XXXXXXX Media (the advertising arm of Name of cable operator) also has a local sales office to help small businesses advertise specifically in the (the LAP’er cable site) area on major cable networks like ESPN, Fox Sports, TBS, TNT, USA and many many more....

 

Read it again. This cable official is telling a local subscriber that wrote in asking them NOT to once again change the channel for the local leased access programmer that the MSO provides an advertising service that can serve the area. This is direct competition, unfair direct competition, with the LAPer since the cable operator has now moved his channel location three times, resulting in being on a channel not received by many former viewers.

 

Now back up to where Congress was saying, “Leased access was intended to “remedy market power in the cable industry. Specifically, leased access was “a safety valve for programmers who may otherwise be subject to a cable operator’s market power and who may be denied access (or) given access on unfavorable terms”.Now ask yourself if the cable operator can, at will, move a local independent programmer’s leased access to a channel with less subscribers than those the cable operator’s own media sales team offers local ‘ad inserts’ in, whether or not this is “unfavorable” or if they’re abusing their “market power”.

 

LAPA has a staff of one—me-- while the Media Bureau has to have a few dozen employees on the public payroll. Are we supposed to believe that while deciding to ignore that phrase in the rule that says “used by most subscribers” they also were unable to check their own history to find where in 1992 Congress and the FCC Commission were expressing concern over whether or not cable would mistreat leased access users.

 

In my next blog I’ll address how the Media Bureau refuses to communicate with LAPA while there’s overwhelming evidence of their dilly-dallying with the cable operators.

 

In spite of cable’s hurtful manner of dealing with leased access and fact that FCC’s Media Bureau tacitly or worse yet, overtly, takes actions that favor cable when acting on ‘petitions for relief’ it’s still possible to operate leased access profitably, albeit it nowhere near the ‘genuine outlet’ prescribed by Congress.So if you’re already a LAPer take heart the association is working with some members of Congress to get FCC’s Media Bureau to change their ways.If you’re thinking of using leased access, contact us for the facts and you’ll probably become one of us.

The real enemy of “leased access”

The language is plain and clear, well it should be ‘plain and clear’ but FCC’s Media Bureau, refuses to define or explain the following.

In the Second Report and Order and Second Order on Reconsideration of the First Report and Order, CS Docket No. 96-60, FCC 97-27, released February 4, 1997 we find language that “the Commission indicated that, while a cable operator may not impose a separate charge on a leased access programmer for the same kind of technical support that is already provided to non-leased access programmers, a charge may be added to recover the cost of providing a tape recorder or a camera, for instance, if such equipment would be provided to non-leased programmers at the same additional charge.”

In the order in http://www.fcc.gov/Bureaus/Cable/Orders/1997/da971013.txt, FCC states;
“The information provided by (the cable site) is relatively brief and falls short of a full justification for the $50 fee it asserts could be justified. Thus, for example, it is not clear why the cost allocated for modulators is not a cost ordinarily provided in common to other programmers and thus recovered under the implicit fee calculation rather than as a separate technical support fee.”

Yet two individual cable sites insist my firm, StogTv, must pay for the expensive modulators required for the to place our leased access programming on a digital tier. While I don’t have ‘proof positive’ they provide these devices and all other necessary interconnecting devices and/or materials when they place non-leased programming on a digital tier, I’ll be serious money the truth is—the do.

Sadly the problem seems to not lie with the cable operators. They’re simply trying to maximize their profits when they wrongfully impose ‘conditions and terms’ on LAPers (leased access programmers) beyond that the law and FCC rules supposedly permit. The enemy of leased access is the very agency charged by Congress with seeing we truly have the “genuine outlet” for programming on local cable sites. FCC’s own Media Bureau has long gone far out on the limb to permit cable sites to impose conditions on LAPers that place us in positions where they then have us at a clear financial disadvantage in securing local business

Need for Congressional Intervention

By Charlie Stogner, President, LAPA

 

The following is a copy of a letter sent to Steve Hunt, regional representative for New York Congressman Bill Owens.

 

The manner is which some cable sites have treated leased access users since the cable industry was able to ‘stay’ the new rules only days before they were to have gone in effect in May, ’08, is worse than that prior to adoption of the ‘stayed’ rules. I contend most, if not all, of this lies with the Media Bureau refusing to fairly administer and/or even discuss ‘terms and conditions’ now imposed on LAPers by cable operators.

In a few days I’ll take time to compile a comprehensive report on how the Media Bureau responded to a letter from my attorneys that only asked for clarification on a published FCC statement.I’ll also share how the Media Bureau responded to questions by my U.S. Senator, seated on the committee overseeing FCC where if I were the Senator I’d be astounded and insulted. Problem is my senator has never taken time or had a staff member take time to understand the basics of leased access.

Anyway, for now this is the letter written by a New York state legislator to the aide of his Congressman, pointing out the unfavorable treatment the cable company is imposing on a LAPA member.

 

If you feel you’re begin mistreated, please email This email address is being protected from spambots. You need JavaScript enabled to view it. This e-mail address is being protected from spambots. You need JavaScript enabled to view it and I’ll see if maybe helping you write your member of Congress might begin to force FCC’s Media Bureau to treat LAPers with the respect it appears the law intended and insure we’re treated right.

Here’s the letter


To: This email address is being protected from spambots. You need JavaScript enabled to view it. This e-mail address is being protected from spambots. You need JavaScript enabled to view it
Subject: television coverage in St. Lawrence County

Steve,

I'm the St. Lawrence County legislator for district 15 and one of my constituents came to me with a problem that may be served by your office.

In St. Lawrence County, the local news is controlled by only two corporations. The Johnson newspaper company controls all of the local papers and has begun a news service that further limits local items. Martz communications operates many of the local radio stations, especially those with an interest in local news, but they use the local papers as their primary sources for coverage.

That leaves television, but there are no local tv affiliates in St. Lawrence County. The nearest stations are located in Watertown or Plattsburg, which I'm sure you know because this is campaign season and ad buys are starting.

A local group has been trying to start a local cable access station, but they are having issues with Time Warner cable in Northern New York. All of the corporate action seems to say that they don't want to be bothered with this little station, but they plan on providing a necessary service to the county.

The station has been relegated to digital cable rather than the more subscribed packages. Time Warner's digital package contains channel numbers 100 - 208, but the local station was given channel number 1501. Despite following industry standards for sending content to the local Time Warner affiliate in Massena, the Time Warner corporation forces them to send DVD copies of their content by mail to Syracuse where they have to pay a Time Warner employee each time a DVD is inserted or switched for playback. This seems like an unfair practice of corporate bullying.

I know that in broadcast areas, the FCC has jurisdiction, but I believe they also work with cable companies to ensure broadcast standards for the cablecast content. If the Congressman's office could help in this area it would be happily accepted and lauded.

I should also include that the constituent I talked to was my brother. I didn't want the appearance of preference, so I have actually kept from writing you until it seemed like nothing could resolve this situation. Thank you.

Sincerely,

Daniel Girard
St. Lawrence County Legislator
District 15

Political Candidate Prospects

Many don't realize the rules that apply to cable LO (local origination) channels, cable networks and broadcasters do not apply to using 'leased access'.

Why not offer candidates low cost airtime as part of your leased access programming and help them post the videos on Google as well.

Check out http://mashable.com/2010/06/03/google-campaign-toolkits/

Leased Access programmers should 'rule the roost' in political programming.