Challenge to Charter Order Seemingly Signals Further Effective Competition Fight

Massachusetts is challenging the FCC's order that Charter Communications faces effective competition in parts of the state and Hawaii from the AT&T TV Now streaming service (see 1910250036). Similar Cox Communications and Comcast petitions with the agency for similar determinations (see 1912190070) will likely also get state and locality opposition there, we were told. Hawaii didn't comment when asked if it would also appeal.

The Massachusetts Department of Telecommunications and Cable (MDTC) in its petition for review filed Monday with the 1st U.S. Circuit Court of Appeals, to be posted in Pacer, said the FCC order violates the Communications Act, Telecommunications Act and agency regulations and exceeds statutory jurisdiction and authority. It asked that the court vacate and set aside the order and remand it to the agency for further proceedings. It didn't elaborate. The FCC, which was closed Tuesday, didn't comment.

Localities lawyer Gerard Lederer of Best Best said multiple communities in Massachusetts that would be affected by the Comcast and Cox petitions will likely file to preserve the issue for appeal, in case the MDTC is successful.

A cable lawyer said if the state had opted not to challenge the Charter order, it likely would opt to not oppose the Cox and Comcast petitions. He said the state could face a tough hurdle at the appellate court given the Chevron standard of legal deference to federal agencies' regulatory decisions. He said the only notable risk is if AT&T pulls the plug on the streaming service. He said since the full commission approved the Charter order, the Comcast and Cox petitions are likely to get Media Bureau OK, possibly in a single order.

It isn't clear whether other cable distributors will also file effective competition petitions in Massachusetts based on AT&T TV Now. The cable lawyer said Comcast and Charter are the biggest cable operators in the state, and Charter's petition didn't include all the communities that are part of its footprint, since many already were subject to effective competition.

Another cable lawyer said the state is likely to appeal the Charter decision if for no other reason than to maybe get the attention of Sen. Ed Markey, D-Mass., in hopes of Hill pressure on the agency or legislation. He also said Massachusetts is likely to fight the Comcast and Cox petitions. Neither cable operator commented Tuesday.