AT&T hearing postponed, parties talk of settlement

Local stations believe Channel 6 location is theirs

By Kara Chalmers

AT&T, Saratoga and Los Gatos are discussing a settlement in the lawsuit the cities filed against the company for changing the channel of their community-access TV stations, attorneys for the cities said.

The telecommunications giant in September moved stations KSAR in Saratoga and KCAT in Los Gatos from cable Channel 6 to Channel 15. The stations were moved so that KICU-TV, a commercial channel in San Jose, could broadcast from the Channel 6 spot, which had been home to KSAR for 14 years and KCAT for 16 years.

The cities on Nov. 5 filed a motion in state court asking for a preliminary injunction--a court order that KSAR and KCAT return to Channel 6 for the duration of the lawsuit--and for a hearing as soon as possible.

No settlement has been reached, but negotiations among the parties were positive enough that the hearing date, originally set for Dec. 14, was moved to Jan. 14, according to Saratoga City Attorney Jonathan Wittwer.

If a settlement is not reached by Jan. 14, the cities will face AT&T in court and must show they are entitled to a preliminary injunction.

In their motion for injunction, the cities argue that the move has caused the stations irreparable harm and that an injunction would prevent continued harm while the suit is pending. Attorneys for the cities also said they are likely to win the case. According to Elizabeth Rader, an attorney with Heller, Ehrman, White and McAuliffe, a Palo Alto law firm that is working on the case pro bono, the cities will try to prove both points in court.

AT&T said it moved the stations because KICU had decided it wanted to exercise federal "must carry" rights with AT&T, meaning AT&T had no choice but to broadcast KICU on whichever channel it chose, and KICU chose Channel 6.

Los Gatos' and Saratoga's contracts with AT&T say that their stations must be carried at Channel 6 unless AT&T has to relocate them to comply with federal regulations. However, since the beginning, the cities have challenged AT&T's assertion that federal regulations gave it the right to move the stations. They also said AT&T has violated their contracts.

Must-carry laws allow local commercial stations like KICU to select their cable channel based on four criteria, one of which is whether AT&T and KICU reach an agreement. But according to Los Gatos Town Attorney Orry Korb, AT&T is not free to reach an agreement with KICU because AT&T already has agreements with Saratoga and Los Gatos to carry their stations on Channel 6.

About a week before the cities and AT&T were scheduled to face one another in state court Oct. 5, AT&T moved the case to federal court, alleging that the case falls within the purview of the Federal Communications Commission. But a federal magistrate judge granted the cities' motion to remand, or return, the case to state court, saying the state should have jurisdiction over the case.

Wittwer and Korb said AT&T only asked for the move to delay the trial, and Korb said that the remand was a positive sign for the cities' case.

AT&T will not comment on pending litigation, according to its spokesman Andrew Johnson.

Channel 6 is an important location to KCAT because it is near the network stations and is seen by viewers who "channel surf" from channels 5 to 7, said George Sampson, KCAT station manager. It is also important that the stations stay at the same channel, so their loyal viewers know where to find them, said Tessa McGoldrick, community-access director at KSAR.

"That's the channel number people identify us with; that's where they know to find us," McGoldrick said. "And for those people who may come across us through channel-surfing, it's definitely a much better spot for us to be on than 15."

If the court does not grant the injunction, McGoldrick said KSAR will have to change its logo, its letterhead and its brochures, update its website and repaint its truck. Also, she said every tape that airs has a station identification, a six, which would have to be changed.

"It's a fair amount of cost for us," she said.

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