Potential legal battle looms in Green Park over television service

Charter opposes AT&T Missouri’s proposal to offer IP TV in Green Park

By BURKE WASSON

A proposal for AT&T Missouri to begin offering Internet-Protocol Television in Green Park has Charter Communications claiming a breach of constitutional law.

Green Park aldermen voted 5-0 last week in favor of a first reading of an ordinance authorizing a three-year agreement for IP TV services in Green Park. Ward 3 Alder-man Mark Hayden was absent from the Dec. 18 meeting.

City Attorney Paul Rost of Cunningham, Vogel & Rost advised aldermen to only vote on a first reading last week and then wait until he has drafted a legal opinion of each of Charter’s concerns before the board’s next meeting Monday, Jan. 22.

Rost summarized the argument between AT&T and Charter as a debate over whether the IP TV service that AT&T would like to offer is essentially a cable service.

Paul Berra, senior director of government services with Charter, contended AT&T would be bound by guidelines looser than in the agreement the city previously approved with Charter. He also reminded aldermen that the city attorney for Creve Coeur, where a similar agreement with AT&T was just approved, acknowledged that IP TV is cable TV.

“Even in Creve Coeur, where it was just passed as a video-service agreement, the city attorney recognized in a letter to us that IP video is a cable service,” Berra told aldermen last week. “Yet, like Creve Coeur, you are preparing to grant an ordinance that implicates constitutional issues as in-consistent with applicable law.”

The Project Lightspeed agreement that AT&T Missouri is proposing in Green Park has been approved in Creve Coeur and Overland.

Berra said last week that he and Charter also believe that AT&T’s proposed agreement with the city would be unfair. He cited the length of both Charter’s agreement with Green Park and the proposed pact with AT&T and noted that Charter is subject to more conditions.

“Charter’s second concern is one of fair treatment. With all due respect to Mr. (Dan) Vogel, who’s handling the agreement on your behalf, I cannot believe the city feels that an eight-page agreement with AT&T will have the same burdens and commitments that are being imposed on Charter. If you took a quick glance at our agreement, we have a 21-page franchise agreement in which we have to abide by, but also a 65-page regulatory code. This should give counsel some pause and wonder does Charter have more burdensome provisions than AT&T? And the answer is yes.

“Charter feels in light of the serious legal, competitive and economic issues raised by the AT&T agreement, this council should take a step back and review the issue and fully consider both the legal ramifications and the necessity to take appropriate action to ensure a level playing field with all cable-service providers and their customers in Green Park.”

Rost later responded to Berra’s argument that aldermen do not have to worry about making any legal determination of the agreement. He added that the proposed ordinance includes a provision whereby AT&T has agreed to pay for all legal services for the city if the agreement is legally challenged by Charter.

As for Charter’s plea for a “level playing field,” Rost said it should come as no surprise that AT&T should be under fewer guidelines because the proposed agreement calls for a one-year build-out of DSL Internet services to make IP TV available to Green Park residents. Charter’s agreement, according to Rost, had a build-out period of three to five years.

“One of the reasons the first agreement that Charter referred to was so long was because it had a lot of nebulous language in there about how long they had to build out the cable,” Rost said. “Somewhere between three to five years, even more, if they did certain things. Here, AT&T has one year, and it’s only a three-year contract. So if at the end of three years they haven’t done what they said they’re going to do, we can certainly not re-up it.”

Rost also said that with regard to the issue of whether IP TV is cable or not, the agreement is purposely set up to work both ways and added that if the service is found to be cable, AT&T would be regulated by Green Park’s cable code.

“We left a lot of those issues out of the AT&T agreement only in the sense that there was never going to be an agreement on that,” Rost said to the board. “If it’s cable, they will be bound by our cable code. If it’s not cable, they won’t be. But that doesn’t mean this agreement that we have in front of you doesn’t already protect the city, the citizens from the lack of build-out or to be left without cable.

“A lot of the things that Charter was talking about were very important when Charter’s predecessor came to the city and asked for a franchise because at that time there was no cable in the area. Charter’s predecessor had zero assets — a little different from AT&T. They had no track record of building out this stuff. And so it was very important at that time to make sure that everybody in the city was able to get cable and make sure that nobody would be left out.

“Here, DSL is in the area. AT&T has said they’re going to get this technology available for the citizens of Green Park. With the level playing field argument, some of the things Charter left out in that argument was that Charter’s franchise is for 12 years — considerably longer than what AT&T would get in this agreement, which is three years.”

AT&T Missouri legislative spokesman Gene Maggard told aldermen that Charter essentially is complaining about facing the same service competition that it once gave AT&T when Charter expanded to telephone service.

“Now that the shoe is on the other foot and someone is wanting to get into their business, all of a sudden, it’s only fair if we have to live up to the same requirements they had when they were a monopoly,” Maggard said. “Our vision of a level playing field is that it shouldn’t be any more difficult for us to get into their business as it was for them to get into ours. They don’t have to serve everyone with their telephone service. They don’t have to be at any particular number of households at any particular given time.

“They don’t have to be everywhere. They can pick and choose. So for them to say that it’s only fair if we have to do everything they had to do is somewhat of a flip flop of their opinion from several years ago.”

Rost said he is confident that the agreement is legal and told aldermen he expects they will vote on the issue in January.

“There are plenty of requirements in there for AT&T to have to make sure that they’re doing what they’re doing to get this competitive product out there,” Rost said. “I just think it’s a little disingenuous of Charter to think that there’s some reason that the city of Green Park wants to favor AT&T over Charter. I mean, we just don’t have any reason to and we’re not getting anything out of it that way.”