Judge dismisses Adelphia's lawsuit against Falcon Broadband

Colorado Springs Business Journal, Mar 10, 2006 by Rob Larimer

A federal judge has dismissed a lawsuit filed by Adelphia to prevent Falcon Broadband from operating within Colorado Springs without a franchise agreement.That puts the city, which was also named in the suit, between a rock and a hard place.U.S. District Court Judge Robert Blackburn granted Falcon Broadband owner Randy De Young's motion to dismiss the suit, which alleged he illegally made an agreement to offer cable service in Colorado Springs without a city franchise agreement.The dismissal was without prejudice, meaning the case was simply untimely and that there was no immediate threat to Adelphia, as the cable company's attorneys had alleged.That means Adelphia could refile the suit if it again perceives a threat.Adelphia attorneys said the dismissal doesn't bother them because the filing achieved their purpose.Our goal in filing the suit was to ensure that the same federal and city mandated franchise requirements that apply to us would apply to Falcon's planned offering of services in the city, said Scott Seab, Adelphia director of law and public policy.

The dismissal leaves unresolved the question of whether Internet Protocol Television, or IPTV, providers will be required to have the same citywide-service franchise agreements that cable providers must have.For now, the burden of that decision continues to rest on the city.De Young has submitted a franchise offer to the city. But accepting the agreement will likely mean that Colorado Springs will face a lawsuit from Adelphia.Falcon Broadband's proposed franchise agreement, which must be approved by voters before becoming effective, is less burdensome than Adelphia's and does not require Falcon Broadband to offer services citywide. The issue of whether IPTV technology should be subject to the same definitions and requirements as cable television technology has become a national debate.Cable television operators argue IPTV should not be treated any differently because cable providers have invested millions of dollars to expand their services under the belief that new companies would be held to the same standards. IPTV operators say the mandates are outdated.Adelphia attorneys say their company has invested $75 million during the last five years to expand services.The Federal Communications Commission said it is leaving the decision about whether to require IPTV providers to have a franchise license up to individual cities, which are the franchise licensing authorities.Had the federal courts ruled on Adelphia's suit, it would have provided some guidance about whether Falcon Broadband is required to have a franchise agreement.We haven't fully answered that question to our satisfaction, said Colorado Springs Senior Attorney Lori Miskel.Miskel said the decision is not an easy one to make because the technology has advanced beyond the language of the city code. While the code is specific about cable operators, it says nothing about IPTV operators.The bottom line is they're going to have to deal with us one way or another, De Young said, adding that he also has an Open Video System operator's license. De Young said the license allows him to operate with out a franchise agreement.Miskel said that city attorneys are not sufficiently informed about communications matters to make the decision and that the city's Telecommunications Policy Advisory Committee will provide guidance on the matter.If it gets really sticky, we may look for some outside counsel, she said.Miskel said a decision about whether to honor Falcon Broadband's franchise agreement proposal could come as early as two weeks or as late as a month.