Comcast Sues Vermont To Avoid Building 550 Miles of New Cable Lines (arstechnica.com)

An anonymous reader quotes a report from Ars Technica: Comcast has sued the state of Vermont to try to avoid a requirement to build 550 miles of new cable lines. Comcast's lawsuit against the Vermont Public Utility Commission (VPUC) was filed Monday in U.S. District Court in Vermont and challenges several provisions in the cable company's new 11-year permit to offer services in the state. One of the conditions in the permit says that "Comcast shall construct no less than 550 miles of line extensions into un-cabled areas during the [11-year] term." Comcast would rather not do that. The company's court complaint says that Vermont is exceeding its authority under the federal Cable Act while also violating state law and Comcast's constitutional rights: "The VPUC claimed that it could impose the blanket 550-mile line extension mandate on Comcast because it is the 'largest' cable operator in Vermont and can afford it. These discriminatory conditions contravene federal and state law, amount to undue speaker-based burdens on Comcast's protected speech under the First Amendment of the United States Constitution... and deprive Comcast and its subscribers of the benefits of Vermont law enjoyed by other cable operators and their subscribers without a just and rational basis, in violation of the Common Benefits Clause of the Vermont Constitution."

Comments

Well Comcast should have read the TOS

[Crashmarik]

There was a section that said Vermont could change it any time.

Re:Well Comcast should have read the TOS

[Anonymous Coward]

Oh no! You KNOW those Vermont lawyers pulled a fast one on those Harvard and Yale educated Comcast lawyers! The Comcast people are just simple folks who don't understand the complexities of the law and we should cut them some slack.

And we know that government regulations are just evil and impede corporate prof.....I mean job growth and hurt the economy for us little people.

So, I think, Comca$t should be allowed to reneg on the agreements that the VPUC bamboozled them into signing. After all, it's good for the people.

And those people in those rural areas are just free to build their own community ISP at any time they want - so what's their beef!

(Hey! These Disney shaped candies are awesome - the colors, man! Like this mauve elephant in my room heree.)

Re:Well Comcast should have read the TOS

[Xyrus]

Comcast is actually one of the reasons why I wouldn't move to Vermont. Unless DSL satisfies you're requirements (or you live in a few select areas), you're only real choice for broadband in Comcrap. Putting aside their horrible history of customer service, they actively work to sabotage every other broadband effort in the state. This is just another of many such efforts. They want the permits, but they don't actually want to build out anything. Why? Because if they did then another company could waltz in and use the lines.

The reason Vermont put that provision in there in the first place is because they're fed up with bullshit companies like Comcast fucking them over by buying permits just to sit on them. So finally they said "You buy a permit, you have to fucking use it."

Re:Well Comcast should have read the TOS

[nnet]

Because if they did then another company could waltz in and use the lines.

When have American cable operators ever had to open their lines to another company? Citation please.

Re:Well Comcast should have read the TOS

[cellocgw]

To correct this misimpression: VTel has run rather a lot of FTTH throughout their part of Vermont. It's really quite amazing to me that I can have a house on a 2 mile dirt road off a backwater other road and enjoy FTTH right out there in the boonies.

Just hope the rest of the state gets the same treatment some day.

Not a constitutional right

[mysidia]

amount to undue speaker-based burdens on Comcast's protected speech under the First Amendment of the United States Constitution

Sorry.... no "Speaker-based burdens". Deciding where to install cabling is business, not speech.

Evidence: You require a PERMIT to install this cabling. If something's a constitutional or other legal right then you don't have to get a PERMIT to be authorized to do it.

If you require authorization from the public, then the public gets to negotiate the terms of that authorization to provide the public a benefit offsetting the expense of the privileges you are being granted and expected to use.

The SIZE of your existing installation is a germane topic regarding permits for operating a cable company.

Re:Not a constitutional right

[TFlan91]

If I'm not mistaken, in most areas you require a permit to hold a rally, protest, etc. Pretty sure freedom of assembly is a constitutional right

Re:Not a constitutional right

[Raul654]

If something's a constitutional or other legal right then you don't have to get a PERMIT to be authorized to do it.

Unless Grayned v. Rockford has been overturned while I wasn't looking, that is just not true. The government has a well-established right to regulate the time, place, and manner in which you exercise that speech.

Re:Not a constitutional right

[Vermonter]

While I do agree that you shouldn't need a permit to exercise your constitutional rights, there is sadly plenty of precedents that say otherwise. In almost all states (although a bit ironically here, not in Vermont) you need at least one permit if not more to exercise yous second amendment rights to bear arms, and in many cities you need a permit to exercise your first amendment right to protest.

Re:Not a constitutional right

[Raul654]

I don't like them, but as long as they are content-neutral then they are constitutional. That being said, they become unconstitutional the minute you start forcing your critics to use them but don't do the same with your supporters.

Re:Not a constitutional right

[Kierthos]

Yes, there are certain checks on the freedom of assembly.

Generally speaking, if your assembly gets violent, you can expect the police to get involved, and you really can't claim that as a violation of your freedom to assemble. (Well, you can claim it, but whether the judge buys it is a different matter.)

And again, generally speaking, the law can restrict when you gather. For example, you can't expect to be holding a loud (albeit peaceful) rally in the wee hours of the morning without being cited for disturbing the peace.

Re:Not a constitutional right

[El Cubano]

The SIZE of your existing installation is a germane topic regarding permits for operating a cable company.

I agree with you. However, levying a requirement on one operator and not others strictly because of size is clearly discriminatory.

A better approach would be to establish a formula that mandates build out to un-cabled areas as a function of gross revenues generated by customers in the state. It needs to be revenue based instead of based on the number of customers or amount of profit because being based on the number of customers would be easily gamed and of course anything profit-based would easily fall victim to accounting tricks which big companies are so fond of.

In that way a mom and pop operation that makes small $$ would have a small build out requirement and Comcast and other big fish would that make lots of $$ would have a bigger requirement. The objective is still achieved and in a clear, open, and fair manner.

Re:Not a constitutional right

[hey!]

While I agree with your conclusion, I think your line of reasoning is a bit shaky.

Laying cable is not subject to First Amendment protections, not because it requires a permit, but because it is not speech. There is no expressive content, and you're burying your work in the fricken' ground.

Comcast's argument, if I understand it, amounts to an analogy. They're claiming that saying, "You can lay cable here as long as you also lay a certain amount of cable there," is analogous to saying "You can hold a rally, but you have to praise the Dear Leader." And it is analogous; but like all analogies it has its limitations; in this case the limitation is that laying cable isn't protected by the First Amendment.

Still, it'd be a huge victory for Comcast if they could get the court to rule that laying cable is speech. This would greatly limit the power of government to regulate their business.

Re:Not a constitutional right

[flink]

I don't like them, but as long as they are content-neutral then they are constitutional. That being said, they become unconstitutional the minute you start forcing your critics to use them but don't do the same with your supporters.

That's exactly what they did.

Re:Not a constitutional right

[Rockoon]

This whole 1st Amendment shit is a red herring. Even if laying cable is "speech", Comcast signed a contract to do it, which isnt any different than Susan Bennet signing a contract to be the voice of Siri.

Here is the applicable text of the contract:

33. Comcast shall construct no less than 550 miles of line extensions into uncabled areas during the term of this CPG. Comcast may satisfy this obligation either by fully funding the line extensions or by collecting contributions-in-aid-of-construction from customers pursuant to its line extension tariff. Any line extensions that are funded by a grant from any federal or state governmental agency shall not be used to satisfy this requirement. Comcast shall annually file with the Board and the Department a report that details all line extensions completed during the prior calendar year. This report shall, at minimum, describe the length and location of all completed line extensions and the funding source for such extensions.

There are a few more sections about line extensions, but only in the manner in which they are handled.

Re:Not a constitutional right

[msauve]

"levying a requirement on one operator and not others strictly because of size is clearly discriminatory."

But not any more illegal than, say, having different tax rates for different income levels.

Re: Not a constitutional right

[Guppy]

Such a poor defense strategy suggests Comcast doesn't intend to win this court case. Rather, they probably intend to tie up things in legal proceedings for a good long while.

I'd check the contract carefully to see if there is any sort of clock they can run out by delaying this implementation, or some elected or appointed official's term expiry coming up.

Re:Not a constitutional right

[MachineShedFred]

You can protest any time you want, but if you want to use city property and expect the city to help you (e.g. close streets) then yes, you need a permit. If you don't close the streets and obstruct traffic with your protest, you are committing a crime - your rights to free speech don't come above others' rights of freedom of movement, or established municipal code.

Feel free to walk around on the sidewalk with a sign and have your protest with no permit, no law enforcement will say a word.

Re:Not a constitutional right

[Rockoon]

Its wrong because the State has not mandated anything. Comcast signed a contract with the State agreeing to build out more infrastructure in exchange for an 11 year franchise permit.

Re:Not a constitutional right

[El Cubano]

Why stop there? Even if the rate is the same, the person earning more still pays more. Do they get additional government services for their greater payment? How about property taxes? Subsidies/tax breaks which go to one industry, but not another?

This is why I happen to think income-based taxation is the worst possible strategy. Property taxes and most other taxes are already uniform. For example, I am not aware of any jurisdiction that taxes properties differently based on their assessed value. They may have exemptions (e.g., lower your assessed value if it is your primary residence, or lower your assessed value if you are drawing Social Security disability, etc.). But they don't have 1% tax rate for properties up to $100k assessed value, 2% tax rate for properties from $100k to $500k, etc. Now, there may different tax rates applied depending upon the designated use of the property (a residential property may be taxed differently than an industrial property), which is usually fine. Sales taxes are another example, they tend to be flat (at least within a tax jurisdiction, where you may have state, county, and local taxes all adding up to determine the tax rate that shows on the receipt at the store). It would probably not pass legal muster to tax certain things at different rates based solely on their cost. Though, there are lots of examples of different taxes on different classes of goods (e.g., tobacco and liquor). But again those tend to be uniform.

All of this is why I like the Fair Tax proposal. It is uniform and you can determine your exact tax burden with a few simple mathematical operations on the back of a business card. It is a far cry from the tangled mess that we have now. And by the way, if you are a fan of "tax the rich because they can afford it" the Fair Tax handles that too. If you buy a big ticket item, you pay the same tax rate on that. So, if I go buy a book for $10, I will pay tax on that at X %. If some rich guy goes and buys a yacht for $10M, then he will literally pay 1,000,000 times the gross tax I paid on my $10 book. Seems very fair to me.

Also, think about this: how prevalent is sales tax fraud compared to income tax fraud? Hint: sales tax fraud is a rounding error compared to income tax fraud. I am not saying nonexistent, just a few orders of magnitude less common. Income tax fraud requires one party to act fraudulently. Sales tax fraud requires two or three parties to act fraudulently, which is far less likely. Also, drug dealers, gangbangers, and organized criminals all buy stuff too, so they will begin to share in the burden of funding the government, whether they want to or not.

Re:Not a constitutional right

[KingMotley]

First, IANAL, however after reading Grayned v. Rockford, it doesn't support what you say.

Grayned v. Rockford was about the constitutionality of two city ordinances in which demonstrators were arrested while protesting outside a school while school was in session.

The first ordinance, the "anti-picketing" ordinance was ruled as unconstitutional by the Supreme count of Illinois.

The second ordinance, the "anti-noise" ordinance was ruled constitutional, but was only violated because of where, when AND manner that speech was exercised. They could have done any two of those things, but only when all three were done (adjacent to a school, during/30-minutes prior or after school session, AND loud enough to disrupt regular school operation) was in violation of the law.

According to Grayned v. Rockford, they didn't need a PERMIT, nor was there a way to get a PERMIT to do what they did (make enough noise close enough to a school to disrupt it's normal operation). While an interesting case, it simply doesn't support what you say it does. The government isn't regulating free speech in this case. It is however interpreting what happens when one's right to free speech violates another's rights, and deciding which takes priority and codifies it in law.

Re:Not a constitutional right

[El Cubano]

I don't know of one which doesn't. If what you say were true, there would be no reason to have a (government) assessed value, everyone would pay the same. As it is, your taxes go up if the assessed value does - if that's not a difference "based on their assessed value", I'm not sure what is.

I think we have a miscommunication here.

The rates of taxation on property are uniform. I pay 2.5% and so does my next door neighbor. My house is assessed at a value of $100k, so I pay $2500, his house is assessed at $150k, so he pays $3750.

It is no different than if I go to the store and buy a $100 tablet, on which I will pay $6.50 sales tax. If you guy and buy a $200 tablet, you will pay $13.00. If they looked at you and said, hey you are buying a more expensive tablet and can afford to pay more tax, so we are taxing you 9% instead of 6.5%, that would be unfair. It is the same for property tax, and I maintain that it is the same for income tax. This is why there such a big deal made over the income tax passed in Seattle for high earners. The Washington Constitution says that taxes have to be uniform (e.g., at the same rate of taxation on all affected parties) and that provision has successfully been used to challenge attempts at levying progressive income taxes.

The important thing is that the rate of taxation is uniform regardless of the amount being taxed.

Re:Not a constitutional right

[El Cubano]

So, does the guy with the more expensive house use more government services which would justify his paying more?

Not necessarily, but why is that relevant? Taxation has long been established as a means of funding the functioning of government. There is no perfect system, just different trade offs to make. Given that in some cases it is not possible to properly allocate the costs of government services (e.g., transportation infrastructure, the justice system, national defense) to all beneficiaries, some approximation has to be made. Some approximations are more equitable or fair than others.

You're saying that paying a percent of value (sales tax is completely different, and a red herring) makes the tax uniform.

A constant percentage of value is in fact the very definition of a constant tax. By its nature, tax is levied with respect to the value of the thing being taxed. A constant payment without regard to the value of the thing being assessed is a fee or a toll. For example, You can go through a toll booth in Florida in a 1979 Toyota Camry and you will pay $1.25, or you can go through the same toll booth in a 2014 Bugatti Veyron and you will still pay the same $1.25 toll. Fees and tolls are not at issue here.

It doesn't, it means some people pay more than others. Why is that "fair?"

There is a difference between constant rate and constant amount or value. Which is appropriate or fair is situational, just like in calculus.

Re:Not a constitutional right

[Whibla]

I thought his meaning was pretty clear from his post, after all he actually included examples of what he meant.

His point: The rate of tax doesn't increase as the value of your property increases.

Your Counter: The amount of tax you pay increases as the value of your property increases.

Not the same thing at all!

Translation...

[__aaclcg7560]

Our CEO can't buy a bigger yacht if we put customers first.

Re:Translation...

[DontBeAMoran]

Trickle-down economics dictate that he should distribute his previous, smaller yacht to poor people first.

Expect to receive a 1x1 inch piece of yacht by mail within two to three months.

Solution!

[Anonymous Coward]

Vermont could build its own municipal cable company to wire all the homes, with blackjack, and hookers, too. Then Comcast would sue for unfair competition, I suppose.

Re:Solution!

[Rockoon]

This isnt regulation. Its contract.

Comcast signed it. Thats the end of all "regulation" arguments.

I would personally prefer that no State permit be required and thus no State contract, that Comcast and so forth would instead need to get individual contracts from each and every property owner individually rather than use State power to force all property owners to allow Comcast an easement.

My better world isnt here. The world of contracts is here. Comcast signed it.

Network Investment

[anomalous3]

Something Something Network Investment. Something Something Title II. It's pretty hard to claim that you WANT to invest in infrastructure when you're suing to breach a contract that said you'd invest in infrastructure.

turnaround

[jm007]

Customer: the terms are hideously one-sided and I have no other options
Comcast: you signed it and a contract is a contract; no backing out, you have obligations

Comcast: the terms are hideously one-sided and I have no other options
VT: you signed it and a contract is a contract; no backing out, you have obligations

Comcast: you don't have the authority to do that!

no need for more to be said

Re:turnaround

[DontBeAMoran]

This is probably the most simple argument you could present in court so that EVERYONE can understand how Comcast are acting.

Public property

[buck-yar]

Last time I checked, Comcast used mostly roadside utility poles and roadside underground cabling. All owned by the state and local municipalities. If they want to use the public's property, they have to abide by the public's rules.

I don't see how this is a first amendment issue at all.

Re:Public property

[Anonymous Coward]

They signed a contract. They AGREED to this, and are now trying to back out.

Remove their monopoly privilege

[BenJeremy]

Fine, don't want to play nice? Then the state should open up any area where Comcast operates to the free market (and state it that way, to confuse and bother the corrupt republicans who will undoubtedly try and block it)

Re:concast cable We don't care about the law.

[Rockoon]

Its not law, its contact.

..and if Comcast didnt like the contract, they shouldnt have signed it.

I feel this way on both sides of this issue. Both Comcast and Vermont should be held to their contractual obligations.

If Comcast doesn't want to live up to the contract then they can pound sand and the court can decide how to make Vermont whole. I'm sure there are more than a few competing cable companies that want to service those areas, and I'm sure a nice big financial judgment against Comcast will delight the voters.

If the people of Vermont don't like whats in the contract then the voters should make it a key issue during the next election and vote out all the people involved in signing the bad contract, and additionally all the people they support too just to get the message across that signing contracts that are not in the peoples best interest will absolutely not be tolerated.

Also... an 11 year franchise contract? What the fuck?

I see no violation of the Constitution

[PortHaven]

They want to have a monopoly that requires they have a license from the state, then they're subjected to that license.

Frankly, we have been paying fees to the telcos for decades, these funds were supposed to facilitate their reaching rural areas. Except they basically pocked them and do zero upgrades to their infrastructure. Sorry, absolutely zero sympathy for Comcast.

Re:Constitutional Rights

[Zak3056]

violating state law and Comcast's constitutional rights

The Constitution of the United States does not protect "corporations", but only "persons", "the people", and "citizens". Enough of this granting protection to corporations. Corporations are a construction of the government and only exist to serve the people.

The scenario you propose would imply that the New York Times, a corporate entity, should not enjoy the protections offered by the first amendment. Corporations are not people, but people acting in concert should have the same rights as people acting separately.