TELECOM Digest OnLine - Sorted: Re: Broadband Competition Must Surely be Working

Re: Broadband Competition Must Surely be Working

Neal McLain (
Thu, 25 Aug 2005 10:55:14 -0500

<> [TD V24:372] wrote:

> So, while the landscape today includes a diverse collection of local
> and national ISP's with a range of services and cost options, the
> future will be dialup at $10-15/month or Comcast or Verizon/MSN at
> ~$50/mo. No more local businesses, no more local customer service,
> no choice of services.

AES <> [TD V24:373] responded:

> If accurately described here (and I have no reason to think it isn't)
> this is absolutely criminal -- and probably entirely typical of what
> most or all "broadband to the premises" types services (copper,
> cable, fiber or wireless will try to impose on us).

> Has your local government no way to control what comes to your
> premises over the publicly owned rights of way?

Local governments have very limited control over content provided by
telecommunications networks placed on their rights of way.

Under our system of law, property law is the province of state
governments, but interstate commerce law is vested in the Congress.
Congress has determined, and numerous court decisions have confirmed,
that content carried by telecommunications (telco and CATV) networks
falls within the meaning of interstate commerce.

Since my background is in CATV, I'll cite how this situation has
affected the CATV industry, and leave it to other readers to cite how
it's affected telcos.

Federal law does give local governments the right to "manage" rights
of way used by CATV, but exactly what "manage" means has been a source
of much controversy.

Some matters indisputably fall within the meaning of "managing":

- Determination of the physical location of facilities within
the ROW (aerial or buried; distance from edge of ROW; depth
of burial; location of utility poles; restrictions against
new poles; etc.).

- Permitting and inspection of work, including restoration of
work areas to "as was" condition.

- Traffic control in work areas.

- Maintenance of public records and system maps related to the
CATV company.

- Imposition and collection of fees based on actual services
rendered, such as permit fees, inspection fees, utilities,
reimbursement for employee time/overtime, etc.

However, under to federal law, content-related matters do not fall
within the meaning of "managing."

- Local governments may not exercise control over video programming
offered by any CATV, except for PEG access channels specifically
authorized by federal law. This limitation is rooted in FCC and
federal court decisions dating back to the 1950s and 60s holding that
CATVs are not common carriers because they alone select the content
carried over their networks [1,2]. Subsequent court decisions have
affirmed that such content selection constitutes "speech" protected by
the First Amendment [3]. This policy has always been, and continues
to be, controversial [4-7].

- Local governments may not exercise control over "Title II
telecommunications services" (including ISP access) offered by any
CATV. This limitation follows directly from the Communications Act of
1996 [8], and was recently confirmed by the Supreme Court in the
"Brand X" decision [9]. Nevertheless, this policy continues to be
controversial [10,11].

PAT [TD V24:373] added:

> [TELECOM Digest Editor's Note: But what the cableco will _claim_ is
> that the 'right of way' is not publicly owned; and telco will claim
> that municipal ownership of the right of way gives unfair
> competition to them in providing ISP services. Or so they will all
> claim. PAT]

Huh? I was in the CATV business for 25 years, and I never heard anybody
claim that municipal ROW was "not publicly owned."

The right of a franchised CATV operator to occupy land stems from
three sources:

FRANCHISE AGREEMENT. A franchise agreement grants a CATV company the
right to occupy (install and maintain its facilities on) ROW owned by
the (one or more) municipal and/or county government(s) that
constitute the LFA (local franchising authority). But a franchise
does not grant the right to occupy:

- Other government property (as parks, recreation facilities, schools,
government buildings, etc.) unless specifically so stated in the
franchise agreement).

- Property owned by any municipal or county government that is not a
constituent government of the LFA.

- Property owned by any separate governmental entity (federal or
state government; school district; public college or university,

- Railroad ROW.

- Private property.

have a federal right to occupy existing recorded utility easements
"which have been dedicated for compatible uses" [12]. Many states
also have similar provisions; for example, Texas [13].

NEGOTIATED EASEMENT or PERMIT. If a CATV company wishes to occupy any
property not covered by a franchise agreement or by an existing
recorded utility easement, it must negotiate a separate easement or
permit with the property owner.

PAT's statement that

"But what the cableco will _claim_ is that the 'right of way'
is not publicly owned ..."

mystifies me. If PAT is referring to property owned by the LFA (or a
constituent government of an LFA), then I don't agree with his
statement. If he's referring to property owned by any other entity,
then he's right: the CATV will indeed, and correctly, claim that the
ROW is not owned by the LFA (or a constituent government of the LFA).

----- references -----

[1] Federal Communications Commission. "Frontier Broadcasting v.
Collier" (determining that CATV systems are not common carriers). 24
FCC 251, 1958. Cited in Mary Alice Mayer Phillips, "CATV: A History
of Community Antenna Television." Evanston: Northwestern UP, 1972,

[2] United States Court of Appeals for the District of Columbia
Circuit. "Philadelphia Television Broadcasting Co. v. FCC" (affirming
"Frontier"). 359 F. 2d 282, 1966. Cited in Phillips, 56.

[3] Thompson-Findlaw. Annotations to the U.S. Constitution, First
Amendment, "Governmental Regulation of Communications Industries,"
"Regulation of Cable Television."

[4] Fred H. Cate. "The First Amendment and Compulsory Access to Cable
Television." Evanston: Northwestern University, n.d.

[5] Thomas W. Hazlett. "Let's Regulate Cable Now!" New York: The
Manhattan Institute, October 1998.

[6] Thomas W. Hazlett. "Regulation," "Wiring the Constitution for
Cable." Washington: The Cato Institute, n.d.

[7] Andrew Glass. "Cable TV indecency." The Hill, February 8, 2005.

[8] 47 U.S.C. 541(b)(3).

[9] Supreme Court of the United States. "National Cable &
Telecommunications Association et al. v. Brand X Internet Services et

[10] Yuki Noguchi. "Cable Firms Don't Have to Share Networks, Court
Rules." The Washington Post, June 28, 2005, D01.

[11] Consumers Union. "Statement of Consumers Union and the Consumer
Federation of America on the Supreme Court's Decision to Grant Cert in
the Brand X Case." December 2004.

[12] 47 U.S.C. 541(a)(2). The term "compatible uses" is usually
construed to mean easements dedicated for electric power and/or
telephone facilities.

[13] Texas Utilities Code 181.101 - 181.104.

Neal McLain

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