Fast Internet access must be an imperative | StarTribune.com

Fast Internet access must be an imperative StarTribune.com

Xfinity and Beyond: A Guide to Comcast’s New “TV Everywhere” Service - ADverse: Atkinson on Advertising | Blog on Broadcasting & Cable

Xfinity and Beyond: A Guide to Comcast’s New “TV Everywhere” Service - ADverse: Atkinson on Advertising Blog on Broadcasting & Cable

Ohio Senate passes bill to loosen telephone regulation | Business - cleveland.com - - cleveland.com

Ohio Senate passes bill to loosen telephone regulation Business - cleveland.com - - cleveland.com

FW: ALERT: Broadband Stimulus Rush Begins With $182 Million in Grants Today in Georgia

FCC Daily Digest

Vol. 28 No. 246
December 16, 2009

OPTIONS FOR A NATIONAL BROADBAND PLAN. Task Force Provides Framework
for Final Phase in Development of Plan. News Release. News Media
Contact: Mark Wigfield at (202) 418-0253, email: Mark.Wigfield@fcc.gov
OCH http://ping.fm/Y7JZn
http://ping.fm/zfl0d
http://ping.fm/BSMQY

FCC Considers Opening Up the Pipes - Digits - WSJ

FCC Considers Opening Up the Pipes - Digits - WSJ

GAO: FCC must improve wireless industry oversight

The Associated Press: GAO: FCC must improve wireless industry oversight

The 2009 Holiday Gift Guide for Lawyers - In case you were wondering http://ping.fm/wghrE

COMMENT SOUGHT ON TRANSITION FROM CIRCUIT-SWITCHED NETWORK TO ALL-IP
NETWORK

Released: 12/01/2009. COMMENT SOUGHT ON TRANSITION FROM
CIRCUIT-SWITCHED NETWORK TO ALL-IP NETWORK. (DA No. 09-2517). (Dkt No
09-137 09-47 09-51 ) NBP Public Notice # 25, PLEADING CYCLE
ESTABLISHED. Comments Due: 12/21/2009. WCB . Contact: Randy Clarke at
(202) 418-1500
http://ping.fm/fYtwa
http://ping.fm/hT3Tx
http://ping.fm/K6IbZ

Comcast Lends Mediacom A Hand - 2009-12-01 19:15:09 | Multichannel News

Comcast Lends Mediacom A Hand - 2009-12-01 19:15:09 Multichannel News

Comcast Joins Mediacom In Sinclair Dispute - 2009-12-01 19:40:12 | Broadcasting & Cable

Comcast Joins Mediacom In Sinclair Dispute - 2009-12-01 19:40:12 Broadcasting & Cable

When Will Broadband Stimulus Funds Begin to Flow?

American Chronicle When Will Broadband Stimulus Funds Begin to Flow?

State AT&T president opposes changes in new cable law

State AT&T president opposes changes in new cable law.
WisBusiness.com

Clearwire Raises $920 Million More To Fund WiMax Buildout - 2009-11-25 11:18:54 | Multichannel News

Clearwire Raises $920 Million More To Fund WiMax Buildout - 2009-11-25 11:18:54 Multichannel News

Windstream to Acquire Iowa Telecommunications - WSJ.com

Windstream to Acquire Iowa Telecommunications - WSJ.com

FW: Legislative Roundtable on Telecommunications Policy - Wednesday, Dec 2, 12 Noon

FCC IDENTIFIES CRITICAL GAPS IN PATH TO FUTURE UNIVERSAL BROADBAND -
Includes USF Structure

NEWS RELEASES

Released yesterday by the FCC.


FCC ISSUES DECLARATORY RULING ESTABLISHING TIMEFRAMES FOR STATE AND
LOCALITY PROCESSING OF APPLICATIONS FOR WIRELESS TOWERS. News Release.
Adopted: 11/18/2009. News Media Contact: Matthew Nodine at (202)
418-1646 WTB . Contact Angela Kronenberg at (202) 418-2963, email:
Angela.Kronenberg@fcc.gov
http://ping.fm/agvJI
http://ping.fm/KmY1D
http://ping.fm/93wqQ
http://ping.fm/9YJHG
http://ping.fm/EMeO4
http://ping.fm/0NzVl
http://ping.fm/7Vrtv
http://ping.fm/Z3HOU
http://ping.fm/aONw4
http://ping.fm/twT34
http://ping.fm/qxGuc
http://ping.fm/BkP06
http://ping.fm/0XRig
http://ping.fm/c8aKM
http://ping.fm/UKry7
http://ping.fm/lSt5M
http://ping.fm/nl9UF
http://ping.fm/MIZuQ

* * * * *


PETITION FOR DECLARATORY RULING TO CLARIFY PROVISIONS OF SECTION
332(C)(7)(B) TO ENSURE TIMELY SITING REVIEW AND TO PREEMPT UNDER SECTION
253 STATE AND LOCAL ORDINANCES THAT CLASSIFY ALL WIRELESS SITING
PROPOSALS AS REQUIRING A VARIANCE. This Declaratory Ruling promotes
the deployment of broadband and other wireless services by reducing
delays in the construction and improvement of wireless networks. (Dkt
No. 08-165 ). Action by: the Commission. Adopted: 11/18/2009 by
Declaratory Ruling. (FCC No. 09-99). WTB
http://ping.fm/6xO67
http://ping.fm/rRIIf
http://ping.fm/FUYZP
http://ping.fm/Ad0AX
http://ping.fm/wC8cj
http://ping.fm/aPRZ9
http://ping.fm/yVwdS
http://ping.fm/uuz23
http://ping.fm/FxNtn
http://ping.fm/tUqjk
http://ping.fm/dGMcJ
http://ping.fm/WcoE2
http://ping.fm/o2OL5
http://ping.fm/w5qWY
http://ping.fm/jrlXL
http://ping.fm/ygwPp
http://ping.fm/GSWjV
http://ping.fm/v6XKA

FCC Releases Top Five Barriers To Broadband - 2009-11-11 18:22:57 | Broadcasting & Cable

FCC Releases Top Five Barriers To Broadband - 2009-11-11 18:22:57 Broadcasting & Cable

Anoka County RFP for Identification of a Partner for Broadband Development

Anoka County RFP for Identification of a Partner for Broadband Development

Download a current solicitation - Purchasing - Anoka County, MN

One of Minnesota's Largest Telecoms Expands Services Using Clearfield`s FieldSmart Fiber Management Products | Reuters

One of Minnesota's Largest Telecoms Expands Services Using Clearfield`s FieldSmart Fiber Management Products Reuters

Google's Voice Is Silent In Some Rural Areas : NPR

NPR piece on Google Voice.

Google's Voice Is Silent In Some Rural Areas : NPR

NTIA, RUS To Delay Announcement Of Broadband Bid Winners

NTIA, RUS To Delay Announcement Of Broadband Bid Winners: "The naming of winning bidders in the broadband stimulus grant/loan program ..."

FCC May Take Back TV Airwaves - WSJ.com

Wall Street Journal article from today on how the FCC may create more spectrum for wireless.

FCC May Take Back TV Airwaves - WSJ.com

Comments on Net Neutrality Due 1.14.10

Last week the FCC issued its Notice of Proposed Rulemaking, titled In the Matter of Preserving the Open Internet Broadband Industry Practices. This is the anticipated Net Neutrality rulemaking proposal. Comments are due January 14, 2010.

The FCC is proposing to codify the four Internet principles it announced in its Internet Policy Statement of 2005 plus two additional principles. The proposed new rules are:

1. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from sending or receiving the lawful content of the user’s choice over the Internet.
2. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from running the lawful applications or using the lawful services of the user’s choice.
3. Subject to reasonable network management, a provider of broadband Internet access service may not prevent any of its users from connecting to and using on its network the user’s choice of lawful devices that do not harm the network.
4. Subject to reasonable network management, a provider of broadband Internet access service may not deprive any of its users of the user’s entitlement to competition among network providers, application providers, service providers, and content providers.
5. Subject to reasonable network management, a provider of broadband Internet access service must treat lawful content, applications, and services in a nondiscriminatory manner.
6. Subject to reasonable network management, a provider of broadband Internet access service must disclose such information concerning network management and other practices as is reasonably required for users and content, application, and service providers to enjoy the protections specified in this part.

Where the FCC ultimately comes down on what constitutes ‘reasonable network management’ will determine whether the resulting rules will be manageable or onerous for broadband providers.

The backgrounds and personalities of this FCC is different from years past. These Commissioners appear to be focused on more recent entries into the market than traditional telecom providers. Incumbent providers will need to be diligent in making their concerns known and specific regarding the potential ramifications of hastily considered rules.

Here is a link to the NPRM. http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-93A1.doc.
Please contact one of us at the firm if you wish to discuss or submit comments.

Link to article on interactive advertising.

Cable Digital News - Video - Comcast COO: Nat'l Platform Key to
Interactive Ads - Telecom News Analysis

View this online at:
http://ping.fm/nMRqU

Retransmission Reform - Mediacom Asks FCC For Retrans Help

Many companies are looking for similar relief.


Mediacom Asks FCC For Retrans Help: "Mediacom Communications is back in battle formation against Sinclair Broadcas..."

FCC ANNOUNCES RELEASE OF REPORT ON BARRIERS TO BROADBAND ADOPTION BY
THE ADVANCED COMMUNICATIONS LAW & POLICY INSTITUTE. News Release. (Dkt
No 09-51 ). News Media Contact: Mark Wigfield at (202) 418-0253, email:
Mark.Wigfield@fcc.gov WCB
http://ping.fm/iThH1
http://ping.fm/pm8te
http://ping.fm/pSbwk

Comcast Says TV-Over-The-Net getting high marks in testing

Comcast says TV-over-the-Net getting high marks in testing - Philadelphia Business Journal ( http://ping.fm/WNYUa )

FCC Releases Net Neutrality NPRM

The FCC refers to "Open Internet" rather than Net Neutrality now. The NPRM and Commissioner Statements are on www.fcc.gov.

Federal Communications Commission (FCC) Home Page: "10/22/09
Commission Seeks Public Input on Draft Rules to Preserve the Free and Open Internet.
NPRM: Word Acrobat
News Release: Word Acrobat
Genachowski Statement: Word Acrobat
Copps Statement: Word Acrobat
McDowell Statement: Word Acrobat
Clyburn Statement: Word Acrobat
Baker Statement: Word Acrobat
Staff Presentation: Acrobat"

FCC Approves Proposed Net Neutrality Rules - Political News - FOXNews.com

Look for the FCC to release to release its proposed rules on net
neutrality or "open internet" today. Check in later at www.fcc.gov.

Integra Telecom Earns PHONE+ Top 50 Channel Program Honors | Reuters

Integra Telecom Earns PHONE+ Top 50 Channel Program Honors Reuters

It's AT&T vs. Google in Upper Midwest

It's AT&T vs. Google in Upper Midwest The Republican Eagle Red Wing, Minnesota

Posted using ShareThis

Federal Communications Commission (FCC) Begins OpenInternet.gov Blog « ResourceShelf

Federal Communications Commission (FCC) Begins OpenInternet.gov Blog « ResourceShelf

Shared via AddThis

Chorus Against Net Neutrality Grows - Washington Post

 

Washington Post Blog entry on net neutrality. 

http://voices.washingtonpost.com/posttech/2009/10/the_companies_that_sell_equipm.html?wprss=posttech

Chorus Against Net Neutrality Grows

The chorus of critics against a proposal for open-Internet policies at the Federal Communications Commission is growing. Thursday, the companies that sell the equipment for Internet networks and the people laying down fiber and engineering cell phone networks complained to the FCC chairman that the proposal could hurt the economy and slow the spread of broadband Internet networks.

And a common refrain has emerged among the protests. Companies, trade groups and a lawmaker appear to object to details in the proposal that would clearly make the new rules apply only to Internet service providers. A draft proposal being circulated to commissioners include a rewriting of current guidelines that apply only to access providers like AT&T, Verizon and Comcast. Critics, say that while they don't want new guidelines, any changes to the rules should encompass Web applications service and content makers like Google, Amazon and Yahoo. Take a look at my post Wednesday that explains the change.

The proposal should "ensure consistency in all proposed principles by protecting consumers' access to vibrant competition (4th principle) and transparency (6th principle) among all Internet participants, including network providers, application and service providers and content providers," labor union Communications Workers of America wrote in a letter to FCC Chairman Julius Genachowski Thursday.

"Commentary that suggests all the innovation occurs 'at the edge' of the Internet with content and applications and software is both inaccurate and short sighted," Senator Kay Bailey Hutchison (R-Tex.), ranking member of the Commerce Committee, wrote to Genachowski earlier this week. "We need to understand whether the commission will apply its principles and rules on an open Internet to everyone in the Internet community or requires additional authority to do so."

The concern was echoed in a letter by AT&T to the FCC's wireline bureau, asking regulators to prevent Google from blocking calls to rural areas through its Web-based voice application, Google Voice: "As communications services increasingly migrate to broadband Internet-based platforms; we can now see the power of Internet-based applications providers to act as gatekeepers who can threaten the “free and open” Internet.

Other letters protest language in the draft proposal that may include managed Internet services in rules that could limit carriers’ ability to offer digital cable and certain premium services, sources that have seen the draft proposal said.

None of these details are public, but they have been trickling out before the proposal goes up for vote next Thursday, Oct. 22. Public interest groups say the criticism appears premature, as the vote next week isn't for final rules. The vote would begin a months-long process, that would include public comment, on what new rules would look like, said Art Brodsky, a spokesman for the advocacy group Public Knowledge.

"In my 20 plus years in this business, I've never seen this kind of noise to try to stop the vote of a proposal just to begin a process of rule-making," Brodsky said. "This is unprecedented."

Report from Minnesota High Speed Broadband Task Force - November 6, 2009

The highly anticipated report from the Minnesota High Speed Broadband Task Force will be presented at the State Capitol on November 6, 2009.

 

Here are the details:

FRIDAY, November 6, 2009
11:00 AM
Room: G-15 Capitol
Chair: Rep. Sheldon Johnson
Agenda: Presentation and overview of the final report of the Minnesota High Speed Broadband Task Force.

 

 

Senate Republicans Send Another Letter to FCC on Net Neutrality

Latest on Net Neutrality from the Washington Post.

Senate Republicans Send Another Letter to FCC on Net Neutrality

http://voices.washingtonpost.com/posttech/2009/10/senate_republicans_sen
d_anothe.html?referrer=emaillink

(c) 2009 The Washington Post Company

Net Neutrality Opponents Continue to Press Case in Washington

Net Neutrality Opponents Continue to Press Case in Washington: "Free-market think tank Phoenix Center circulated a policy bulletin Monday, ..."

Rural Consumers Pay the Price for Network Management Regulation

Rural Consumers Pay the Price for Network Management Regulation

FCC Extends Wireless Inquiry Comment Deadlines

FCC Extends Wireless Inquiry Comment Deadlines: "The FCC has given the public and industry more time to weigh in on its inquir..."

Google Voice service worries North Dakota PSC | INFORUM | Fargo, ND

Google Voice service worries North Dakota PSC | INFORUM | Fargo, ND

Posted using ShareThis

Show Me The Money: Does Net Neutrality Hurt Or Help Investments?

Washington Post blog on net neutrality policy.

 

 

Show Me The Money: Does Net Neutrality Hurt Or Help Investments?

via Post Tech on 10/12/09

Will net neutrality hurt or help the economy? Amid a stubborn recession, that question will take center stage as critics and proponents debate how new rules at the Federal Communications Commission would impact investments in the Web. At a high level, the arguments are straight forward. But the details supporting those views -- which will likely be debated for months at the FCC -- become vastly more complicated. FCC Chairman Julius Genachowski and proponents of new rules say the next Google or Amazon being cooked up in some garage may not see the light of day if a policy isn't put in place that ensure they'll make it on the Web. "There are hundreds of thousands of Americans whose small businesses rely upon the free and open Internet," Genachowski said in a Q&A last week. "The rules I am proposing seek to preserve the Internet as unparalleled engine for economic

 

 

Things you can do from here:

• Subscribe to Post Tech using Google Reader
• Get started using Google Reader to easily keep up with all your favorite sites

 

 

FCC Seeks Comment on Cost Estimates for Connecting Anchor Institutions to Fiber

By: Michael R. Bradley

Another public notice from the FCC related to the National Broadband Plan. Comments are due on October 28, 2009.


http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-2194A1.pdf

FCC Comment Sought on Broadband Clearinghouse

By: Michael R. Bradley

The FCC released a public notice seeking comment on the topic of a broadband clearinghouse. Comments are due on November 16, 2009. The full notice is found at:

http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-2167A1.pdf

The public notice states, "In the course of the Commission’s development of a National Broadband Plan, its review of the record and discussions during the broadband workshops, several parties have suggested that a broadband clearinghouse should be created for easy access to broadband best practices. A broadband clearinghouse could reduce information barriers for municipalities, agencies, businesses, and non-profits that want insights into more effectively utilizing broadband infrastructure, or into broadband deployment or adoption projects. Such a clearinghouse could also provide information and a forum for scholars and policymakers to gather and contribute data. We seek targeted comment on the notion of a broadband clearinghouse."

FCC Seeks Comment on Impact of Middle and Second Mile Access on Broadband Availability and Development

By: Michael R. Bradley

The FCC is seeking comment on the impact of middle and second mile access on broadband availability and development, which will be used in the development of the National Broadband Plan. The full public notice can be found at: http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-09-2186A1.pdf

More Spectrum and More Regulation in Store for Wireless Industry

By: Michael R. Bradley

In speaking to the CTIA in San Diego, FCC Chairman Julius Genachowski announced a new initiative to add more wireless spectrum for high-speed internet and gave assurances that the FCC will make efforts to speed up the deployment of 4G wireless networks. Chairman Genachowski indicated that he wanted the make more wireless spectrum available and impose a "shot clock"on local governments reviewing tower applications. He also indicated that he wants to impose net neutrality on the wireless industry.

Links to news coverage:
http://m.news.com/2166-12_3-10369871-10356022.html

http://online.wsj.com/article/SB125493452581671117.html?mod=WSJ_hpp_MIDDLENexttoWhatsNewsSecond

Telcos and 238

by Joy Gullikson, Attorney
    
     Many traditional telephone companies (telcos) now offer internet and television services. This is not news, they’ve been doing it for years. In order to provide television services, telcos know that they must first obtain a cable franchise from the local franchising authority. The state statute covering cable issues is Minnesota Statutes Chapter 238.

     Telcos are used to the vagaries and subtleties of the Telecommunications Statute, Minn. Stat. § 237. Chapter 237 governs pricing, mergers and acquisitions, service quality, conditions for competition and methods for governing the filing of complaints. The Chapter guides the Minnesota Public Utilities Commission (MPUC) and the MPUC writes rules that specifically address the implementation of Chapter 237. Telco representatives have appeared before the MPUC for years, they know the staff and the staff of the Minnesota Department of Commerce. Simply put, telcos know the rules of the game. They know where to push, when to concede, and generally how to operate profitably within the given parameters.

     It is tougher to know where to push in Chapter 238. There is no state forum that convenes for the purpose of addressing and resolving cable issues. No one in the state writes rules that implement the requirements of Chapter 238. Vagaries and subtleties are harder to determine, because the courts are the interpreters of the statute, and rules are set at the interstate level by the FCC. In addition, telcos simply do not have the long experience with Chapter 238 as they have with Chapter 237.

     In order to make the most of the television side of the business, however, telcos need to become as immersed in Chapter 238 as they have been in Chapter 237.

PEG and I-Net Requirements Under FCC Local Franchising Order

PEG and I-Net Requirements Under FCC Local Franchising Order

By: Michael R. Bradley, Bradley & Guzzetta, LLC

The recently affirmed FCC order on local franchising concludes that “LFAs may not make unreasonable demands of competitive applicants for PEG and I-Net” and that doing so constitutes an unreasonable refusal to award a franchise.

Reasonable and Adequate Support

With regard to PEG channel capacity, the FCC determined that it would be unreasonable "to impose on a new entrant more burdensome PEG carriage obligations that it has imposed on the incumbent cable operator." The FCC found that PEG support must be both “adequate and reasonable.” Adequacy is defined by the FCC as “satisfactory or sufficient.” The order does provide some examples of unreasonable PEG support obligations, including:

· completely duplicative PEG and I-Net requirements;
· payment of the face value of an I-Net that will not be constructed; and
· requirements that are in excess of the incumbent cable operator’s obligations.

Pro Rata Cost Sharing is Per Se Reasonable

According to the FCC, pro rata cost sharing of current (as opposed to future) PEG access obligations is per se reasonable. Unfortunately, the FCC did not provide additional guidance on how to properly and accurately calculate what the appropriate per subscriber payment should be made. Questions remain about situations where lump sum PEG grants and in-kind contributions are included in an existing franchise agreement.

In the event that pro rata cost sharing is utilized, PEG programming providers must permit a new entrant to interconnect with existing PEG video fees. The new entrant must bear the cost of interconnection. The order is silent on where interconnection must take place, or what type of transmission medium (e.g., fiber or coaxial cable) must be used.

Regulation of Mixed-Use Networks

The order states that “LFAs’ jurisdiction applies only to the provision of cable services over cable systems. To the extent a cable operator provides non-cable services and/or operates facilities that do not qualify as a cable system, it is unreasonable for an LFA to refuse to award a franchise based on issues related to such services or facilities.” In other words, cable franchising decisions can only be made based on issues related to cable service.

Conclusion

Ask our attorneys at Bradley & Guzzetta, LLC how to address PEG and I-Net obligations in cable franchises.

Cable Franchise Fees

Cable Franchise Fees

By: Michael R. Bradley, Bradley & Guzzetta, LLC

The FCC clarified several issues surrounding the calculation of cable franchise fees in its report and order in 2007, including:

(i) the franchise fee revenue base;

(ii) limitations on charges incidental to the awarding or enforcing of a franchise;

(iii) the proper classification of in-kind payments unrelated to the provision of cable service; and

(iv) the proper classification of contributions in support of PEG services and equipment.

Later in a Second Report and Order, the FCC applied the majority of these findings and rules to existing as well as competitive entrants.

Franchise Fee Revenue Base

In its order, the FCC clarified “that a cable operator is not required to pay franchise fees on revenues from non-cable services.” According to the FCC, this prohibition would specifically apply to cable modem service revenues, broadband data service revenues, Internet access revenues and other non-cable service revenues.

The FCC did not specifically address whether advertising revenues, home shopping channel commissions, launch support, late fees, installation fees and even equipment revenues, because they could be considered “non-cable” services. The FCC does note that advertising revenues and home shopping commissions have historically been included in gross revenues for franchise fee calculation purposes, but it does not say such revenues and commissions can be included in the calculation of gross revenues going forward.

Charges Incidental to the Awarding or Enforcing of a Franchise

Section 622(g)(2)(D) of the Cable Act excludes from the federal five percent franchise fee cap “requirements or charges incidental to the awarding or enforcing of the franchise, including payments for bonds, security funds, letters of credit, insurance, indemnification, penalties, or liquidated damages . . .” According to the FCC, the term “incidental” includes only those items listed in Section 622(g)(2)(D), “as well as other minor expenses” described in the order. Examples of charges that are not “necessarily” to be regarded as incidental include processing fees, acceptance fees, consultant fees, and attorney fees. Reasonable franchise application fees and processing fees are, however, to be regarded as proper incidental fees that do not count towards the federal franchise fee cap.

The FCC also concluded that “free or discounted services provided to an LFA” and certain “in-kind payments” are non-incidental costs that must be considered franchise fees. The order was silent on the specific treatment of institutional networks and whether the costs associated with providing fiber for institutional networks and furnishing free drops, outlets and cable service to governmental institutions could be deducted from a cable operator’s franchise fee payments.

In-Kind Payments Unrelated to the Provision of Cable Service

The Report and Order finds that “any requests made by LFAs that are unrelated to the provision of cable service by a new competitive entrant are subject to the statutory 5 percent franchise fee cap.” The FCC provides no concrete guidance as to what types of financial and in-kind requests would not be counted against the franchise fee cap, but does list certain examples of requirements that apparently would be deemed franchise fees, if included in franchise documents, such as scholarship grants, video hookups, money for wildflower seeds and fiber for traffic signal monitoring.

Contributions in Support of PEG Services and Equipment

Section 622(g)(2)(C) of the Cable Act specifies that “capital costs which are required by the franchise to be incurred by the cable operator for public, educational, or governmental access facilities” are not franchise fees. The FCC interprets this language to encompass “those costs incurred in or associated with the construction of PEG access facilities.” The order goes on to state that “payments in support of the use of PEG access facilities” are franchise fees. These payments in support of PEG include, but are not limited to, “salaries and training.”

Conclusion

It is important to understand the rules surrounding the calculation of cable franchise fees. Please contact the attorneys at Bradley & Guzzetta, LLC if you would like additional information.

Competitive Cable Franchising in Minnesota

Competitive Cable Franchising In Minnesota
By: Michael R. Bradley, Bradley & Guzzetta, LLC

Companies that want to provide cable service are required by the Federal Cable Act to acquire a cable franchise from a unit of local government before providing service. In Minnesota, cities are the local unit of government that is authorized to grant cable franchises. Federal law also requires these franchises to be non-exclusive. In other words, no city may grant an exclusive franchise to any one particular company. For many years, most cities did not see more than one provider seeking a cable franchise. There are many reasons for this, but probably the biggest reason was that it was prohibitively expensive for a competing cable operator to construct cable wire and other facilities throughout a city. It was simply cost-prohibitive in most situations. However, with recent changes in technology and the ability of telephone companies to provide video service through IP technologies, the competitive landscape is changing. More telephone companies, particularly rural telephone companies are seeking to add video to their lineup of service offerings to their customers.

State Law Considerations

When there is an existing cable franchise in place in a city, the second competitive franchise must not be "more favorable or less burdensome than those in the existing franchise pertaining to: (1) the area served; (2) public, educational, or governmental access requirements; or (3) franchise fees." When the new cable entrant is proposing different franchising requirements in these three areas, it is up to the franchising authority and the other interested parties to reach agreement on what "more favorable or less burdensome" means in this context. As of this posting, this issue has not yet been fleshed out by any court in Minnesota.

Another consideration is whether the competing company is a "cable communications company" as that term is defined by the Minnesota Cable Act. If it is not, the level playing field provisions of the Minnesota Cable would not apply.

Local Considerations

When looking at granting a competitive cable franchise, it is also important to understand any "competitive equity" or "level playing field" provisions in the existing cable franchise. It is not unusual for the existing franchise to have language that contains limitations beyond the level playing field conditions set forth in state law. The language may also apply to more companies than merely cable communications companies.

Federal Considerations

In 2007, the FCC released two orders relating to competitive franchising. The first order addressed competitive applicants for cable franchise and the second order addressed whether the rules in the first order applied to the existing franchise holder. Under the first order, the FCC adopted new rules concerning the application for an additional cable franchise starting with the time in which a request for a franchise must be acted upon.

Competitive Franchise Deadlines

• If a company already has authority to access the public rights-of-way, the franchising authority my act on an application within 90-days.
• All other applications must be acted on within six (6) months.
• A franchise applicant has the burden of proving that it filed the requisite information with the franchising authority.
• Unless otherwise agreed by the applicant and the franchising authority, if deadline is not met then an applicant is automatically granted interim authority to utilize public rights-of-way to provide cable service.
• The terms of an “interim franchise” are those proposed in an applicant’s application and remains in effect until a local franchising authority takes final action on a franchise application.

Network Build-Out Requirements

Like state law, the FCC in its first order addressed the area a franchising authority may require in a cable franchise. The FCC declared it is unlawful for franchising authorities to refuse to grant a competitive franchise on the basis of "unreasonable build-out mandates.” In Minnesota, it will be up to the parties to apply this language consistent with the state level playing field language relating to area served.

While the FCC did not definitively define what constitutes an “unreasonable build-out” mandate, it did list examples of both reasonable and unreasonable build-out requirements.

Examples of Unreasonable Build-Out Requirements

The FCC’s examples of unreasonable build-out mandates include:

• requiring a new entrant to serve everyone in a franchise area before it has begun to serve anyone;
• requiring facilities-based entrants, such as incumbent LECs, to build out beyond the footprint of their existing facilities before they have even begun to provide cable service;
• requiring more of a new entrant than an incumbent cable operator by, for instance, requiring the new entrant to build out its facilities in a shorter period of time than that afforded to the incumbent;
• requiring the new entrant to build out and provide service to areas of lower density than those that the incumbent cable operator is required to build out to and serve;
• requiring a new entrant to build out to and service buildings or developments to which the entrant cannot obtain access on reasonable terms or which cannot be reached using standard technologies; and
• requiring a new entrant to build out to and provide service to areas where it cannot obtain reasonable access to and use of public rights-of-way.

Examples of Reasonable Build-Out Requirements

The FCC notes that it would seem reasonable for a local franchising authority to consider benchmarks requiring the new entrant to increase its build-out after a reasonable time, taking into account the new entrant’s market success. The FCC also opined that it would seem reasonable to establish build-out requirements based on a new entrant’s market penetration.

Redlining

With regard to redlining, the FCC continued to rely on 47 U.S.C. § 541(a)(3) to protect consumers against economic redlining, also known as cherry picking.

Conclusion

Franchising competitive operators in Minnesota involves the consideration of federal, state and local laws and contracts. For more information do not hesitate to contact the attorneys at Bradley & Guzzetta, LLC.