For decades, cities and municipalities have counted on steady revenue from the franchise fees they charge cable companies for use of the public rights-of-way (ROWs). Such fees are imposed by local franchising authorities (LFAs). Under the federal Cable Act, these fees could be as high as 5% of a cable operator’s gross revenues from providing cable TV service. 47 U.S.C. § 542(b).
As the television industry has migrated toward streaming platforms, cable TV revenues have been affected, leading local governments to seek new sources of income from entities using the public ROW. One effort has been to try to impose local fees on streaming platforms, like Netflix or Hulu, that send video using broadband service provided over wires in the public ROW. That has been largely unsuccessful, as discussed here.
Continue reading “Franchise Fees and the FCC’s Mixed-Use Rule – Oregon Federal Decision for Comcast May Have Wide Impact”
In several states there is an ongoing battle over whether or how states can regulate broadband internet access service in the wake of the D.C. Circuit’s Mozilla v. FCC decision (940 F.3d 1). The California case is leading the pack, and last Friday the leading internet trade associations asked the Ninth Circuit for rehearing en banc of its decision upholding a California statute, SB-822, that imposes the same “net-neutrality” obligations on broadband providers that the FCC revoked. ACA Connects v. Bonta, No. 21-15430 (9th Cir. Jan. 28, 2022).
Background. In 2018, the FCC decided to remove its net-neutrality requirements in order to better promote broadband investment, deployment, and competition, goals toward which federal and state governments today are devoting billions of dollars. While core policy concerns drove its decision, the FCC removed its net-neutrality rules by reclassifying broadband internet service as an “information service” under Title I of the federal Communications Act rather than a “telecommunications service” under Title II, which freed broadband internet service from common carrier-type regulation (and the prior net-neutrality requirements).
Continue reading “Telecom Decision – Preemption – Internet Trade Groups Seek Ninth Circuit Rehearing on California’s Net-Neutrality Rules”
Expanding the availability of broadband internet service is among the hottest telecommunications policy topics of the day, especially as the federal and state governments funnel billions of dollars toward more deployment and higher speeds. Last week the D.C. Circuit upheld an FCC rule aimed at that goal, which allows commercial-grade wireless internet antennas in residential areas, a move sought by wireless internet providers.
As technology has changed over time, the FCC has adopted and amended its rules that allow antennas to be placed on private dwellings. The original 1996 regulation allowed for installation of antennas on private property to receive services like satellite and cable television, and preempted state and local restrictions. A 2004 amendment allowed such antennas to serve multiple customers in a single location, provided the antennas were not used primarily as “hubs for the distribution of service.” And in 2021, the FCC amended the rule to allow such antennas to be used as hubs for the distribution of service, paving the way for commercial-grade equipment for, among other things, wireless internet service. Children’s Health Defense (CHD) and others appealed, concerned about the health effects of such antennas on nearby residents with radiofrequency sensitivity. The court’s decision, however, deals mainly with fine legal points of rejecting CHD’s challenges. Children’s Health Defense v. FCC, No. 21-1075 (D.C. Cir. Feb. 11, 2022).
Continue reading “Telecom Decision – D.C. Circuit Upholds FCC Antenna Rule Aimed at Promoting Wireless Broadband”
How a communications service is classified has a critical impact on how (or whether) it can be regulated. That has been a critical issue with respect to internet access service, where the FCC has vacillated between defining it as a “telecommunications service” (and thus potentially subjecting it to common carrier regulation under Title II of the federal Communications Act) or as an “information service” (thus subjecting it to very limited potential FCC regulation under Title I of that Act). After classifying broadband internet access service (BIAS) as a “telecommunications service” in 2015 and imposing “net neutrality” requirements in BIAS providers, the FCC changed course in 2018 and removed those rules, finding they were detrimental to broadband investment, innovation, and availability and that BIAS should instead be classified as an “information service. Many states then considered how to react to the FCC’s 2018 Order. Some considered new statutes that ultimately did not pass, some directed agencies to look into the topic and report back, some used executive orders to require broadband providers contracting with the state to follow net neutrality principles, and some passed specific statutes.
The two most far-reaching statutes, from California and New York, have been challenged in federal court by industry associations arguing both field preemption and conflict preemption. The California court denied a preliminary injunction of the law there (SB-822), which reimposed the same net neutrality requirements the FCC removed in 2018. American Cable Ass’n v. Becerra, No. 18-cv-2684 (E.D. Cal., Feb. 23, 2021) (oral ruling). That decision is on appeal at the Ninth Circuit, where it has been fully briefed (No. 21-15430). Meanwhile, last Friday the New York court granted a preliminary injunction against a New York law (referred to as the ABA) that requires BIAS providers to offer a $15 broadband internet service plan to qualifying low-income customers. New York State Telecomms. Ass’n v. James, No. 21-cv-02389 (E.D.N.Y., June 11, 2021). That ruling may well be taken up to the Second Circuit. Although the two states’ laws are different, there is extensive overlap in the arguments in the cases, and it is interesting to compare how differently the two courts addressed them.
Field Preemption. BIAS is an interstate service, as it provides users with access to all internet endpoints, which could be anywhere in the world. In both California and New York, the industry associations argued that 47 U.S.C. § 152(a) gives the FCC exclusive jurisdiction to regulate the provision of interstate communications services, and that this exclusive jurisdiction preempts states from regulating in that field. They also relied on caselaw stating that the FCC has exclusive or plenary authority over interstate communication services, and distinguishing that from the power left to the states over intrastate communications services. California and New York responded by arguing that Section 152(a) merely discusses FCC authority to regulate interstate services, without clearly excluding the states. They also contended that the federal Communications Act excludes some interstate communications services, such as information services, from FCC authority, and argued that this means Congress did not give the FCC exclusive power in the field of interstate communications services.
Continue reading “Preemption of State Broadband Regulation – New York and California Federal Courts Diverge”
In response to the COVID-19 pandemic, legislators and telecommunications regulators have focused primarily on promoting telemedicine, remote learning and better availability of broadband service in general, as well as ensuring that low-income customers will be able to keep their telephone and broadband service during the crisis.
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