Four cities in Indiana are suing Netflix and different video firms, claiming that online video suppliers and satellite-TV operators ought to need to pay the identical franchise charges that cable firms pay for utilizing native rights of means.
The lawsuit was filed towards Netflix, Disney, Hulu, DirecTV, and Dish Network on August four in Indiana Commercial Court in Marion County. The cities of Indianapolis, Evansville, Valparaiso, and Fishers need the businesses to pay the cable-franchise charges established in Indiana’s Video Service Franchises (VSF) Act, which requires funds of 5 % of gross income in every metropolis.
The lawsuit relies on an uncommon authorized argument and would not appear more likely to succeed. Essentially, the cities are claiming that Netflix and comparable suppliers use the general public rights of means just by providing video streaming companies over the Internet:
Defendants transmit video programming to Indiana subscribers utilizing Internet protocol and different applied sciences. When doing so, Defendants transmit their programming by means of services positioned at the least partially in public rights of means inside the geographic boundaries of Indiana Units, together with public rights of means positioned inside Plaintiffs’ geographic boundaries. Therefore, Defendants are required by the VSF Act to pay the Plaintiffs—and all different Indiana Units wherein Defendants transmit video programming by means of services positioned at the least partially in a public right-of-way—franchise charges.
“Netflix is clearly not a cable operator”
But streaming firms do not need to construct bodily infrastructure in every metropolis to supply online video, so they don’t seem to be deploying their very own wires on public rights of means.
“I find it extremely unlikely this lawsuit will prevail,” Harold Feld, a longtime telecom lawyer and senior VP of consumer-advocacy group Public Knowledge, advised Ars. “The [federal] Communications Act defines terms such as ‘cable system’ and ‘cable operator’ in physical terms.”
As Feld famous, US law defines a cable system as “a facility, consisting of a set of closed transmission paths and associated signal generation, reception, and control equipment that is designed to provide cable service.” Local franchising guidelines and charges are primarily based on cities’ authority to handle their native rights of means.
“Netflix is clearly not a cable operator” and is subsequently not topic to native franchising guidelines, Feld mentioned. “Furthermore, because broadband is not considered a cable service, Netflix does not offer video programming ‘over a cable system,’ which would be required to make it a cable operator.”
Netflix, Hulu, and Disney+ are Internet-only companies. Dish and DirecTV are primarily satellite tv for pc operators but in addition provide online access. The cities’ lawsuit by no means mentions the phrase “satellite” and would not absolutely clarify how DirecTV and Dish use the general public rights of means. “Defendants DirecTV and Dish have transformed their businesses and delivery methods over the last decade to meet the demands of the marketplace, and subscribers now access their services through facilities located at least in part in a public right of way,” the lawsuit mentioned, apparently referring to the newer, online parts of the companies.
Historically, satellite tv for pc companies have not needed to pay the franchise charges assessed to cable firms. “For years, cable companies have called franchise fees unfair because competitors who don’t need the right of way—such as satellite-TV services or online-video services—don’t have to pay cities a dime,” The Colorado Sun wrote in a 2019 article.
When contacted by Ars at this time, a spokesperson for DirecTV proprietor AT&T mentioned that “DirecTV doesn’t use public rights of way and isn’t covered by the Indiana Video Services Franchise Act.” Dish has fought efforts to impose franchise charges on satellite tv for pc suppliers, saying on its “Fair TV Tax” website that “Requiring satellite providers to pay a Franchise Fee, or an equivalent tax, is like asking cable and telecom companies to pay for launching satellites into orbit.”
Dish declined remark at this time. We additionally contacted Netflix, Disney, and Hulu, and can replace this story with any responses.
City franchise income in decline
Even if Indiana’s state court docket system agrees with the cities, the businesses may enchantment in federal court docket and argue that US regulation preempts native franchise charges on streaming firms. The Federal Communications Commission may additionally become involved within the authorized battle, because it has executed in circumstances involving federal preemption of native guidelines. We contacted the FCC at this time and can replace this text if we get a response.
The lawsuit could have been spurred partially by cities getting much less franchise income as TV prospects change to online video. “Records maintained by the Valparaiso clerk-treasurer show the Porter County city received $446,000 in video franchise fees last year, $457,000 in 2018, and $476,000 in 2017,” The Times of Northwest Indiana wrote final week.
Valparaiso metropolis lawyer Patrick Lyp advised the Times, “Our case helps ensure a competitive marketplace where everyone subject to the fee pays it. The current situation is unfair to cable providers who have been following Indiana law.”
The cities’ lawsuit factors to the broad definition of “video service” contained in Indiana’s Video Service Franchises Act, which defines video service as “(1) the transmission to subscribers of video programming and other programming service: (A) through facilities located at least in part in a public right of way; and (B) without regard to the technology used to deliver the video programming or other programming service.” Netflix and the opposite defendants needs to be pressured to “acquire the necessary franchises, pay the required fees in the future, and compensate Plaintiffs and all other units of government for unpaid fees for past service,” the lawsuit mentioned.
A similar lawsuit was filed by the town of Creve Coeur, Missouri, in 2018. Netflix sought dismissal of Creve Coeur’s case in federal court docket, saying that it distributes video programming “exclusively over the public Internet.” The case was remanded to the Twenty-First Judicial Circuit of the State of Missouri, the place it’s nonetheless pending.