Franchise Fees Community Media is being attacked in the courts and fcc
FCC: LOCAL FRANCHISING PROCESS – MB DOCKET NO. 05-311
TALKING POINTS
Local governments support and encourage competition.
LFAs are responsible for protecting public rights-of-way, PEG access channels and I-Nets, helping to ensure the Congressional policy that systems are “responsive to the needs and interests of the local community.” Elected officials must be responsive to the needs of their constituents or face adverse consequences at the ballot box.
There is no credible evidence or concrete examples that LFAs are a “barrier” to competition.
The telecom industry has failed to provide “empirical data” and “specific examples” that the local franchising process slows or deters competitive entry. They cannot cite a single instance where a franchise has been denied, let alone “unreasonably denied.” In fact, Verizon has recently publicly stated that cities were “eager to bring competition to market,” “franchising is not an issue for us,” and “franchising is not holding us back.” And for its part, AT&T doesn’t even seek video franchises.
(In his statement on the Notice, Commissioner Copps specifically notes the importance of a “full record” and “hard record evidence of problems.”)
Reasonable build-out requirements are necessary to ensure competition and lower consumer prices for all residents and are allowed by the Cable Act.
Without such requirements, providers will be able to “cherry pick” the areas they want to serve. AT&T has stated that Project Lightspeed will be available to 90% of its “high-value” customers, but to less than 5% of its “low-value” neighborhoods.
Ex parte presentation materials include examples where LFAs modify build-out requirements to encourage competition.
(In his statement on the Notice, Commissioner Adelstein states that Congress specifically allocated to LFAs the authority to “ensure that all households are served” and that the Notice itself tentatively concluded that it is “not unreasonable” for an LFA to establish reasonable build-out requirements.”)
The Commission lacks the authority to construe or enforce section 621(a)(1).
Title VI does not grant the Commission authority to act as a “national franchising authority” or “oversight board.” Read together, section 621(a)(1) and 635(a) vest the courts – not the Commission – with exclusive jurisdiction over section 621(a)(1). Section 621(a)(1) disputes are fact-specific; courts are well-suited to handle them.
(In his statement on the Notice, Commissioner Adelstein stated that franchising is a vital role given to local officials by Congress; the Commission “needs to tread with caution and care before it asserts any authority to interpose itself with LFAs to the extent Congress specifically delegated power to local officials;” the “franchising process and local powers are spelled out clearly in statute, and only Congress can provide such relief.”)
IPTV is a “cable service.”
IPTV services are subject to Title VI requirements; to hold otherwise would be to violate the Act’s and Commission’s guiding principles of competitive neutrality and non-discrimination.
(In a recent address to the ABA Administrative Law Conference, Chairman Martin stated that “We need to make sure that we have created a level playing field to allow different network technologies to compete fairly with one another.” Rep. Barton has stated that AT&T’s argument that IPTV is not a cable service is “stupido.”)
The telecom industry’s proposed rules are arbitrary and capricious and the Commission has no authority to adopt them.
Build-out requirements are allowed under the Cable Act.
The Commission has no authority to set “deadlines” on LFA franchising actions.
Attacks on application fees, cost reimbursement, and PEG/I-Net requirements are contrary to the Cable Act.
LFAs are permitted to establish customer service standards; the Commission has no authority to impose uniform preemptive federal standards.
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