On December 20, 2006, the FCC effectively decided to take away many of the rights that cities, counties, and states have to regulate cable franchises in their jurisdictions. By a three to two vote, the FCC placed various limits on the length of time that a municipality and a video provider may negotiate as well as which types of requirements that a franchising authority (such as a city) may impose.
You can read the FCC press release as well as the statements of each of the five commissioners at
www.fcc.gov. The two dissenters were both Democrats. The
National League of Cities and other associations of municipal governments had been universally opposed to this action.
The FCC order “prohibits franchising authorities from unreasonably refusing to award competitive franchises for the provision of cable services.” Have you heard that this is a problem? FCC Commissioner Michael J. Copps hadn’t, “I have been troubled at the lack of a granular record that would demonstrate that the present franchising system is irretrievably broken and that traditional federal-state-local relationships have to be so thoroughly upended.”
The FCC order cites various nebulous ways that municipalities are being “unreasonable,” such as by intentionally drawing out negotiations. Is this actually happening? Commissioner Jonathan S. Adelstein doesn’t think so, “the Commission is federalizing the franchising process, taking it upon ourselves to determine in every local dispute what is ‘unreasonable,’ without having actually looked into any local examples to get at the real situation.”
The fact is that municipalities are begging for competitors in the cable market. The problem is that the new video providers don’t want to play by the same rules as the incumbent cable companies. Municipalities and their citizens own the right-of-way where the fiber is laid. It is their property, and they are simply acting to protect their rights. Cities simply want to ensure that all of their citizens will have access to the video services and that their local government and educational channels will be maintained.
The biggest crime is the new FCC exclusion of “unreasonable” buildout requirements in contracts with the video providers. (A buildout requirement simply states that the video company will eventually provide the service to the entire city.) There’s that word again, what is “unreasonable?” As to coverage of the city, a municipality must continue to be able to require that a provider eventually service everyone. This is a fundamental right; it is fair and just for a municipality to require 100% buildout. How would you feel if your city contracted for the new fiber optic service that included high speed internet, but your neighborhood was excluded as a business decision? Would you vote for the mayor who had approved this contract?
The compromise should be made regarding the length of time it takes for the buildout to be complete. It might take many years to lay new fiber throughout a city. Why is it not “reasonable” to require a complete buildout, but allow it to be phased in over a few years? Let them build in the most lucrative areas first, then use the profits to spread the service to everyone.
According to the two dissenters and many others who have written about this issue, the FCC probably does not even have the authority to make this order in the first place. Commissioner Jonathan S. Adelstein says, “In my years working on Capitol Hill, I learned enough to know that this is legislation disguised as regulation.”
Both dissenters encouraged the exploration of litigation that would overturn the order, and one went so far as to quote Ronald Reagan, "Together, after fifty years of taking power away from the hands of the people in their states and local communities we have started returning power and resources to them. … Some will also say our states and local communities are not up to the challenge of a new and creative partnership. Well, that might have been true twenty years ago. … It's no longer true today. This Administration has faith in state and local governments and the constitutional balance envisioned by the Founding Fathers.”
NLC Story:
http://www.nlc.org/Newsroom/Nation_s_Cities_Weekly/Weekly_NCW/2006/12/25/13122.cfm
