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December 23, 2019 Columns

Editor’s Message: FCC Updates Cable Franchising Rules

Bill Scheiderich, Editor

Red Flag Laws

As this issue goes to print the three most recent mass casualty incidents in Dayton, OH, and El Paso and Odessa, TX, have generated considerable interest in so-called “Red Flag” laws, state legislation creating legal rights of action for persons seeking to disarm household members and others who pose a threat of gun violence.

Oregon Attorney General Ellen Rosenblum, a former Section Chair, provides guidance to the recently enacted Red Flag law in that state, found at this link: www.doj.state.or.us. Follow the menus to Crime Victim Services and from there to the law.

For a compendium of all state laws on the subject—including those liberalizing firearm possession—an organization associated with former Arizona Congresswoman Gabby Giffords hosts a site with considerable resources for those of you advising on laws in your city or state. The most recent “Trend Watch,” one of the many resources on this site, was published in July. You may find it at www.lawcenter.giffords.org and follow the menus from there. There are other compendia available on the web, but most do not address red flag laws.

Recent Developments in FCC Preemption of Local Regulation of Wireless Telecom Facilities

You may recall from the not too distant past the FCC’s Order mandating fast track review and (near-mandatory) approval of applications to add antenna arrays to wireless communication facilities in your city. In Oregon cities, for one example, local zoning codes typically include multiple levels of review and timelines for decision for land use applications depending, typically, on the collateral effects of the use sought. Those of us advising those cities spent untold agonizing and agnosticizing hours trying to shoehorn the Order into existing zoning regulations. Drafting a staff report attempting to translate the FCC Order into common English was equally difficult.

Now we have two recent—one very recent—iterations of the FCC’s determination to preempt local regulation of wireless communications facilities and associated use of public rights of way. Last year the Commission in its Declaratory Ruling and Report and Order (FCC 18-133, September 26, 2018) limited both the fees to be charged and the timeline for review and approval of applications to place “5G” and similar new facilities whether on private facilities or within the public right of way. (Shoebox sized transceivers mounted atop street lights are one such design). That Order prompted legal challenges that a practitioner should review before proceeding further. Meanwhile, 5G networks still are vaporware in most areas. You might consult the National League of Cities guidance on the subject at www.nlc.org/resource/small-cell-wireless-technology-in-cities.

More recently the Commission’s Third Report and Order (FCC 19-80, August 1, 2019, available at https://www.fcc.gov/document/fcc-enforces-franchising-laws-promote-broadband-deployment) purports to prohibit certain local regulation of broadband internet access service provided over cable (television) networks. Verizon’s “FIOS” network was and is one such example of using what had been cable television facilities to transmit high speed and high capacity internet content. This new Order would prohibit monetary and non-monetary (aka “in kind”) “contributions” with a money value that exceeds the franchise fee cap of five percent of a cable operator’s revenue derived from the provision of cable service.

FCC Updates Cable Franchising Rules to Promote Broadband Deployment by Cable Operators (Official FCC Press Release)

WASHINGTON, August 1, 2019—The Federal Communications Commission today adopted new rules to promote broadband investment and deployment. Specifically, the Order prohibits excessive franchise fees and explains that local governments may not regulate most non-cable services, including broadband Internet access service, offered over a cable system. These rules respond to a remand by the U.S. Court of Appeals for the Sixth Circuit and set forth how local franchising authorities may regulate cable operators pursuant to the Communications Act.

Under the Communications Act, every local franchising authority and every cable operator that offers cable service must comply with the Act’s cable franchising provisions, and local franchising authorities maycharge franchise fees that are capped at five percent

of a cable operator’s revenue derived from the provision of cable service. But some local governments, through the practice of requiring “in-kind contributions,” have been imposing franchise fees that exceed the five percent cap. In addition to being unlawful, this practice discourages broadband investment, deployment, and innovation by cable operators.

In order to rein in overreach by local franchising authorities, and thereby facilitate the deployment of broadband infrastructure, the Commission concluded today that, under the Act, cable-related, non-monetary contributions required by a local franchise are franchise fees subject to the statutory five percent cap with limited exceptions, including an exemption for certain capital costs related to public, educational, and governmental access channels.

It has also prohibited, pursuant to the Act, local franchising authorities from regulating the provision of most non-cable services, including broadband Internet access service, that cable operators offer over their cable systems.

In addition, the Commission decided that any state or local regulation of a cable operator’s non-cable services that imposes obligations on franchised cable operators beyond what the Communications Act allows is preempted.

Finally, the Commission concluded that requirements concerning local franchising authority regulation of cable operators should apply to state-level franchising actions and state regulations related to local franchising.

Together, these rules faithfully implement the terms of the Act and remove obstacles to the deployment of broadband.

Source: FCC press release at https://www.fcc.gov/document/fcc-enforces-franchising-laws-promote-broadband-deployment

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