Set-Top Energy Caps in Cable Franchises Called Tough for States
States will have a hard time imposing energy efficiency controls on cable set-top boxes using the franchising process, attorneys said. The possibility of getting cable operators to pay for inefficient boxes’ energy use arose recently at a California Energy Commission meeting. Lawrence Berkeley National Lab data seem to suggest that cable franchise bodies could impose energy limits, said an official (CD Jan 17 p8).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
“It would be particularly difficult for a state or local government to adopt regulations along those lines,” attorney Paul Glist said. Congress “specifically removed” state and local authority over any cable subscriber equipment, he said. The Communications Act says “no state or franchising authority may prohibit, condition, or restrict a cable system’s use of any type of subscriber equipment or any transmission technology,” he noted. The FCC deems the box market national, putting it outside state and local authority, he said.
The FCC Local and State Advisory Committee tried to narrow the restriction and failed, Glist said. State legislators trying to cap set-top box energy use have backed off once apprised of the federal restrictions, he said. A House report on the section of the Act addressing limits on franchise authority oversight of set-top boxes interpreted it as a means of avoiding disjointed controls triggered by a “locality-by-locality approach… particularly inappropriate in today’s intensely dynamic technological environment,” he said.
Besides FCC preemption of regulation of technology by franchising authorities, using franchising to mandate set-top box efficiency could amount to setting a technology standard, said cable attorney Nicholas Miller. But the Cable Act also upholds all of a franchising authority’s general police powers unless specifically preempted, he said. That means that theoretically states could set limit set-top box power use if it’s not characterized as regulation of technology, he said. “I think it’s a close call which way it would come out.” States would be position positioned if they set standards through a “generic” law on appliance energy use, he said. That way they wouldn’t be regulating cable boxes specifically but electrical devices in general. “Then it I think it might be much more clearly an effort to exercise the state’s police power, and not a regulation of the technology,” he said.
There’s no “clear answer” on whether states can impose energy efficiency rules through franchising, said attorney Tim Lay. California’s franchise law could be seen as giving that state’s Public Utilities Commission authority to do that, he said, but it would take a “pretty aggressive reading.” And the law could be amended. Federal law preempts state or local regulation of cable set-top boxes, but it isn’t clear whether Congress meant that ban to apply to energy efficiency laws, he said.
Natural Resources Defense Council Senior Scientist Noah Horowitz, who raised the issue at the California Energy Commission meeting, said the NRDC is open to “any sound ideas” to cut set-top box energy use. “Neither the manufacturers nor the service providers seem to have made a dent in this and any new and creative ideas are welcome,” he said. For boxes, service providers are the “key decision makers,” he said. “They are the ones that buy the boxes and spec the boxes in some cases.”