Four Municipal Groups Discussing Followup to FCC Franchise Order
Four municipal coalitions are discussing what action to take in response to the FCC’s franchise order (CD Dec 21 p1). Cities believe it may overstep Commission authority, said Libby Beaty, exec. dir. of the National Assn. of Telecom Officers & Advisors Her group is collaborating with the National Assn. of Counties, the National League of Cities and the U.S. Conference of Mayors. The groups sent Chmn. Martin a letter Dec. 12 saying Title 6 of the Telecom Act doesn’t allow the agency to intervene in franchising. The Alliance for Community Media, which advocates on behalf public access channels, also is involved in the discussions, Beaty said.
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“We're discussing court action,” Beaty said: “We don’t think the FCC has authority.” Martin has said Sec. 621 of the Telecom Act allows the agency to take steps to prevent towns from stifling video competition. The municipal organizations are weighing what action to take once the text of the franchise order, approved 3-2, is released by the FCC, said Beaty. They haven’t settled on a strategy, although options include working with members of Congress to roll back the regulation, she said. NATOA, which doesn’t have a general counsel, may hire a law firm, she added.
Cable is concerned that the order may rescind some local “level playing field” rules ensuring that the industry, Bells and other video providers are treated similarly in franchise matters, NCTA Pres. Kyle McSlarrow said Wed. The industry hasn’t decided whether to sue, he said. Cable would like to get franchise agreements similar to new ones awarded to companies like Verizon. Until the order’s text is released, it’s unclear how the FCC is dealing with that, said a cable attorney. A draft that Martin circulated on the 8th floor this month would let a company with existing rights of way sell video without a franchise if it couldn’t reach a deal with a city in 90 days. That approach would overstep FCC authority, another communications lawyer said: “There are serious legal problems with the Commission authorizing interim franchises under what Congress has told it to do.”
Cities can avoid that deadline by denying a franchise application on the 89th day after a request is filed, the lawyer said: “On the 89th day every city will just deny the franchise and it will go to court” if the proposed terms aren’t acceptable to the municipality. Cities are frustrated by the lack of information from the FCC, said Brian Moura, asst. city mgr. for San Carlos, Cal. “They've got this secret document and they're going to vote on it and nobody knows about it… sort of like being in Russia.” Cal. requires agencies to publish proposed rules 72 hours before agenda meetings.
Cities contend they're better equipped to handle franchising and resident complaints sometimes generated when companies build video infrastructure, Moura said. If residents want to know why utility boxes appear in their neighborhoods, he said, “there’s not really anything the city or FCC can do about it… I think the public is going to have a problem with that.” AT&T’s video service may provoke local ire because it involves placing 5 ft. tall green utility boxes along residential streets, Moura said: “I think when AT&T starts putting in all the ugly tall boxes, they're going to have a PR problem of mammoth proportions.” As part of selling IPTV in Milwaukee, AT&T is willing to pay a 5% tax on video revenue, “assist” public access channels and take other measures, said a spokesman. The company has agreements with 20 other cities to sell video, he said.
Cities don’t oppose changing franchise rules -- they just aren’t clear on what the new rules are, said Miami Valley (O.) Communications Commission Exec. Dir. Steve Huseman: “If we can’t unreasonably restrict things, is the burden of proof on us to say what we're doing is reasonable? Or is it on [video providers] to say what we're doing is unreasonable?”
There may be a silver lining for cities in the franchise order. It resolves local uncertainty about federal reform of the process, which could speed cable franchise renewals, Huseman said: “Renewals of some franchises have been held up… I think people have been reluctant to move forward.”