Save Access

from: Ars Technica

Fight against new FCC video franchising rules heads to court

By Eric Bangeman | Published: April 10, 2007

A handful of local government groups are asking the courts to roll back the Federal Communication Commission's new video franchise rules. Formal Petitions for Review were filed before the US Courts of Appeal for the Third, Fourth, and Sixth Circuits, by the National Association of Counties, the Alliance for Community Media, National League of Cities, the National Association of Telecommunications Officials, and the US Conference of Mayors, among others.
Related Stories

* Telecoms get a break with new FCC franchise rules
* FCC may officially reinstate 30 percent cable ownership cap

Approved in early March by a 3-2 vote, the new FCC rules would make it much easier for AT&T and Verizon to launch their video services in new markets. Local franchise-granting authorities would be forced to grant video franchises if negotiations dragged on for longer than 90 days. In addition, municipalities would lose any ability to prevent the telecoms from cherry-picking affluent and other desirable neighborhoods.

The Petitions for Review accuse the FCC of exceeding its statutory authority by implementing the new rules. The groups also say that the order "violates both the Communications Act and Administrative Procedure Act's public notice requirements," according to the petitions.

Another concern voiced by opponents of the rule is the impact it would have over local control. The National Association of Counties argues that the new FCC rule provides "little recognition of the need by local governments to protect public rights of way." Given the sheer size of the U-verse utility boxes AT&T is installing, cities and towns want to be able to exercise some control over where they are placed.

Competition between video providers is something that should be welcomed, say the groups, but not at the risk of ignoring local interests. The local government organizations have allies among "established" cable companies such as Comcast and Cox Communications for their belief that the new rules provide an unfair regulatory advantage for new market entrants like AT&T and Verizon. Many states have "level playing field" laws that require cable companies to serve all of a city or town, not just the most desirable neighborhoods. Those were the rules that the cable companies had to play by, and they—as well as the governmental organizations—believe the telecoms entering the market should as well. The FCC's order explicitly sets aside such state laws; opponents of the rules believe that only Congress has that authority.

The two big telecoms, who are in the midst of rolling out new video services, strongly back the FCC's rules. AT&T, in particular, has run into a number of obstacles as lays its fiber-to-the-node U-verse network. A number of cities and towns have challenged AT&T's plans, leading some deployments to grind to a halt. AT&T has not helped matters with its obstinate refusal to negotiate local franchise agreements at all, instead choosing to sign memorandums of understanding with municipalities.