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Public-access channels win small battle in AT&T war
By Kara Chalmers
Saratoga and Los Gatos attained a small victory in their ongoing legal battle with AT&T over the move of their public-access television stations, KSAR in Saratoga and KCAT in Los Gatos, according to attorneys for both cities. On Oct. 15, Federal Magistrate Judge Patricia Trumbull granted the cities' motion to remand, or move back, the case to state court from federal court.
In September, the communications giant had moved KSAR and KCAT to Channel 15 in their respective communities, so KICU-TV of San Jose could be broadcast in the Channel 6 spot, KSAR's home for more than 13 years and KCAT's home for 16. KICU had decided it wanted to exercise federal "must-carry" rights with AT&T. AT&T said it had no choice but to broadcast KICU on whichever channel the station chose, and KICU chose Channel 6.
Must-carry laws allow local commercial stations to select their cable channel based on four criteria: current channel position; the channel on which the station was carried as of July 19, 1985; the channel on which the station was carried as of Jan. 1, 1992; or as mutually agreed upon by the station and cable operator.
KICU cannot select Channel 6 based on the first three criteria, according to Los Gatos town attorney Orry Korb. He also believes that the fourth provision, which says that AT&T and KICU may reach an agreement, should be interpreted to mean a negotiated decision and that the parties are free to contract. "Our position is that AT&T is not free to contract with a broadcaster to carry them on Channel 6 because AT&T is already in a separate contract with Saratoga and Los Gatos to carry our community access stations on cable Channel 6," Korb said.
Los Gatos and Saratoga attorneys say the contracts allow KSAR and KCAT to remain on Channel 6 indefinitely.
Channel 6 is an attractive location since it is near the network stations and is seen by viewers who flip from channels 5 to 7 in the Bay Area, said George Sampson, KCAT station manager. And the location between Channels 14 and 16 is not as attractive, in terms of ratings.
"It's like real estate, location is everything," said Sampson, who said most of KCAT's viewers are channel surfers. "If you are located near a good property, your property will do better. So this is killing us."
The longer the channel lineup stays the way it is, the more viewers are lost and the less businesses are going to want to underwrite the programs, said Sampson.
The cities and AT&T were to face each other in court on Oct. 5, but AT&T moved the case to federal court about a week before, alleging that the case falls within the purview of the Federal Communications Commission and thus should be heard in federal court.
The motion to remand the case to state court says that the state should have jurisdiction because the plaintiffs have alleged a breach of contract. And even though the defense has alleged that the issue is federal, the case doesn't necessarily have to be heard in federal court.
Saratoga city attorney Jonathan Wittwer and Korb both said AT&T only asked for the move to delay the trial. "We're pleased that the delaying tactic has not worked," said Wittwer. "[The case] was delayed a little bit, but it would have been delayed longer if it had to go through the federal court process."
Andrew Johson, spokesman for AT&T, said he could not comment because the case is pending.
The next step for Los Gatos and Saratoga is to file a motion in the state court for a preliminary injunction, a court order that KSAR and KCAT be switched back to Channel 6 for the duration of the trial, along with a request for a hearing as soon as possible.
A hearing may be set within the next few weeks, at which AT&T will have to show why it has a right to boot the stations from their positions on Channel 6, and Los Gatos and Saratoga will have to prove they are entitled to a preliminary injunction. To obtain the injunction, they will have to show they will suffer irreparable harm without it or that the likelihood of the success of their case is great.
"I personally believe very strongly that we will prevail on the merits of this case," said Korb, who noted that the attorneys will try to prove both arguments so as to be granted the injunction. "I'm seeing [the remand] as a positive sign that the must-carry issue is just not a valid issue."
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Saratoga, California Since 1955
