CITIES, MUNICIPALITIES SAY FCC OVERSTEPPED ITS BOUNDS
Dozens of cities and municipalities said FCC didn’t have authority to usurp local govt. control of public rights-of- way under either Communications Act or Constitution, in comments filed jointly at FCC Mon. in rulemaking on appropriate regulatory treatment of broadband access to Internet over cable facilities. Cities -- more than 55, including Nashville, Minneapolis and Oklahoma City -- said they would lose $1.8 million this year, more than $2.5 million in next 2 years and more than $50 million over course of 15-year franchise because of FCC’s declaratory ruling that cable modem service was “interstate information service” not subject to Title II requirements. That ruling, if it withstands court challenges (CD April 2 p1), means service wouldn’t be subject to local franchise fees.
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Cities said they derived their authority from state govts., rather than federal govt., so FCC had stepped outside its jurisdiction. They also said it would be unclear under that ruling which govt. entity would have authority to handle consumer complaints and other issues affecting public. Cities said Commission should create “regulatory certainty” by implementing dual regulatory structure, similar to Title VI, for cable modem service.
City of Fairfax, Va., in separate comments, said it disagreed with FCC’s ruling but if Commission decided to stick with it, it should allow municipalities to enforce customer service standards and receive franchise fees for use of rights-of-way. Fairfax said that rather than decreasing customers’ bills to reflect removal of $2.47 franchise fee that’s now gone, Cox recently increased cost of cable modem service by $5. Sacramento Metropolitan Cable TV Commission said FCC’s action opened door for cable companies to discriminate in deciding where to build or extend their networks or provide broadband services. Sacramento said it had been using its authority to prevent redlining or cherry picking by cable companies. “Does the FCC propose to assume that responsibility and to analyze and reconcile census tract data with provider expansion plans to ensure that the digital divide does not get wider?” Sacramento asked. If Commission wants to impede local authority over rights-of-way and easements, it should be prepared to respond to irate property owners about cracked sidewalks, broken water, sewer and gas lines, open trenches, damaged landscaping and escaped dogs, Sacramento said. City said it was sending individual complaints to FCC and Sens. Feinstein (D-Cal.) and Boxer (D- Cal.)
City Coalition, which represents dozens of cities and municipalities, including Norfolk, Va., and Redwood City, Cal., said Commission should recognize cable modem service as “cable service” subject to local regulation, or it should refrain from preempting local regulation and oversight. New Orleans said cable modem service still was subject to franchise fees as “information service” but FCC should reconsider its ruling. New Orleans also said there should be no retroactive refund of franchise fees no matter how service was classified in end.
Kimberly and William Bova of Va., who are plaintiffs in class-action lawsuit against Cox Communications, want FCC to butt out on issue of what to do about franchise fees that already had been collected. They want refund now that cable modem service no longer is subject to local franchise fees. But Bovas, through their attorney, said FCC shouldn’t get involved in dispute because it wasn’t question of national policy. They want issue to be dealt with by courts.
SBC Communications said federal regulators should take “coordinated action” in all broadband proceedings, taking parallel approach to broadband, whether it’s delivered over cable or DSL. “These are merely competing technologies providing essentially the same service -- high-speed access to the Internet,” said Priscilla Hill-Ardoin, SBC senior vp- FCC. She said FCC should lift regulatory burdens from DSL, but if agency believed some type of regulation was warranted, it should establish uniform national regulatory framework under Title I that applies to all competing broadband services. BellSouth, in its comments, also sought regulatory parity: “Asymmetrical regulation in the broadband market will continue to distort the market and impede the development of competition.”
NCTA told FCC it shouldn’t impose “forced” or open access requirements on cable modem service. Allowing multiple ISPs unfettered access to cable companies’ plant would stifle deployment of broadband and increase cost of providing cable modem service to customers, NCTA said. Commission should confirm that “a patchwork quilt” of state and local rules would interfere with deployment of nationwide cable modem service and that such regulation should be preempted, NCTA said. Commission also should clarify that state and local govts. have no authority to require cable operators to obtain a separate franchise or pay additional fees because providing cable modem service imposes no additional burden on municipal rights-of-way, NCTA said. Assn. invoked Internet Tax Freedom Act, which prohibits fees and taxes on Internet services, except franchise fees. Replies are due July 16.