Joseph Van Eaton

1
Federal Challenges To State and Local Regulation
of Communications Providers

• Joseph Van Eaton
• Miller Van Eaton, P.L.L.C.
• IMLA Mid-Year Seminar
• April, 2008

2
Overview

• Since 1984
• cable system franchising has been controlled at
  state and local levels, subject to federal
  statutory limits
• FCC had eliminated regulations governing local
  franchising
• last year, the FCC reasserted authority over
  local franchising based on very limited statutory
  authority

3
Overview

• FCC Orders are limited, but read federal law way
  that suggests FCC has virtually unlimited
  authority to
• regulate state and local franchising processes
• preempt charter and constitutional requirements
  for public participation
• control what requirements can and cannot be
  imposed on cable operators and potentially
  other providers that use rights of way.

4
The FCC Orders

• IN RE IMPLEMENTATION OF SECTION 621(A)(1) OF THE
  CABLE COMMUNICATIONS POLICY ACT OF 1984 AS
  AMENDED BY THE CABLE TELEVISION CONSUMER
  PROTECTION AND COMPETITION ACT OF 1992, First
  Report and Order, 22 F.C.C.R. 5101 (2007) (NEW
  ENTRANTS)
• Second Report and Order, 22 F.C.C.R. 19633 (2007)
  (INCUMBENTS)

5
Background

• Section 621 of Cable Act, 47 U.S.C. 541 states
  franchising authority may not unreasonably
  refuse to award an additional competitive
  franchise, and provides that any applicant may
  appeal such final decision denying a franchise
  to the courts, under 47 U.S.C. 555.
• FCC claimed right to define what was
  unreasonable refusal and decided regs were
  appropriate for local, but not state govts

6
Unreasonable Processes?

• UNDER FIRST ORDER, FOR NEW ENTRANTS
• 90 days to act on completed application submitted
  by a person with facilities in RoW seeking cable
  franchise
• 180 days for anyone else seeking a cable
  franchise
• Local requirements (charter or otherwise for
  public processes, hearings etc. preempted if they
  prevent these deadlines from being met.
• If no action on application by deadlines,
  franchise granted on terms proposed until final
  action is taken.
• UNDER SECOND ORDER
• Rules do not apply to incumbents

7
Flagstaff AZ

• ATT
• Infrastructure providers
• Questions as to impact on RoW rights
• Protection of consumers
• 2008 WL 762860 (F.C.C.)Federal Communications
  Commission (F.C.C.)
• Report and Order
• 1 IN THE MATTER OF PROMOTION OF COMPETITIVE
  NETWORKS IN LOCAL TELECOMMUNICATIONS MARKETS
• WT 99-217FCC 08-87
• Adopted March 19, 2008Released March 21, 2008

8
Protecting existing INETS

• 22 F.C.C.R. 20235, 22 F.C.C.R. 21828, 22 FCC Rcd.
  20235, 22 FCC Rcd. 21828, 43 Communications Reg.
  (PF) 76, 2007 WL 3353544 (F.C.C.)Federal
  Communications Commission (F.C.C.)
• 1 IN THE MATTER OF EXCLUSIVE SERVICE CONTRACTS
  FOR PROVISION OF VIDEO SERVICES IN MULTIPLE
  DWELLING UNITS AND OTHER REAL ESTATE DEVELOPMENTS
• MB 07-51FCC 07-189
• Adopted October 31, 2007Released November 13,
  2007Buy-outs
• problem access to poles/conduits
• often bundled with existing fibers
• Contracts
• how do you protect against bankruptcy?
• contracting/bid issues new division of existing
  responsibilities
• Limits on use?