Comment Re.  FCC-18-131, December 9, 2018


I consider the FCC's Second Further Notice of Proposed Rulemaking (FCC-18-131), September 25, 2018, unacceptably vague and intimidating to PEG providers and supporters.

"In-kind contribution" is not a term that I find in the Cable Communications Policy Act.

The U.S. 6th Circuit Court of Appeals, July 12, 2017, in Montgomery County, MD v. FCC ruled that, without laying a foundation, treating "in-kind" cable-related exactions as "franchise fees" is arbitrary and capricious under §541(g)(1). The Court said that "the FCC should determine and explain anew whether, and to what extent, cable-related exactions are 'franchise fees' under the Communications Act". Did the FCC come up with examples to add to the old list, which included only (1) "a request for video hookup for a Christmas celebration" and (2) "money for wildflower seeds in New York"? No, the FCC did not. It appears to me that FCC-18-131 disregarded and utterly failed to perform that work. So if the proposed rule goes to court again after comments are received, I would hope that it gets remanded this time as well.

"In-kind contribution" is not a term I find in the current cable TV agreement between Humboldt County, California's LFA and cable-TV provider Suddenlink either. Yet the agreement clearly addresses in good faith every federal priority expressed in law. Humboldt's PEG has been in successful operation for several years. However, the uncertainty regarding FCC-18-131 is now causings local PEG providers and supporters in the community to feel threatened. They worry about future PEG funding and mistrust the FCC's intentions with regard to the implementation of this proposal.

Please withdraw FCC-18-131, and do not re-submit a new proposal on "in-kind contributions" without thorough clarification of what it would do.