FCC oversteps authority with proposed cable franchising rules

The Federal Communications Commission overstepped its legal authority in its December 2006 decision to change the way cable franchises are granted in communities across the country, according to NACo Executive Director Larry Naake.

“The nation’s counties are disappointed and unhappy about this overreaching decision by the FCC,” said Naake.

“The FCC has decided to limit the authority for video franchising such as cable services for local government and oversee franchising themselves, even though the FCC has no expressed legal authority to do so.

“The nation’s counties welcome video competition in their communities,” Naake said. “However, this decision undermines local franchising authority and enforcement, threatens local budgets and limits the benefits of broadband video competition to a few well-to-do neighborhoods.”

The proposed order would require local governments to approve or disapprove a franchise request within 90 days for telecommunications companies already in the public rights of way, and within 180 days for those not currently in the rights of way. It would eliminate a requirement for cable operators (video providers) to build-out the entire community, a requirement that incumbent providers must now meet. This would allow new entrants to “cherry-pick” neighborhoods and not necessarily provide competition to all residents. It also would prevent local governments from placing “unreasonable” conditions on a franchise, as defined by the FCC.

If a county disapproves a franchise request, the immediate recourse is for the companies to go to court — a potential barrier for smaller counties to protect their rights because of the high cost of litigation. The order as explained in press releases, but not yet available, pre-empts traditional local authority and control without sufficient evidence in the record to suggest action by the FCC is warranted.

NACo, along with the National League of Cites, the U.S. Conference of Mayors and the National Association of Telecommunications Officers and Advisors, had written to the FCC chairman outlining their concerns about the draft order.

In addition, several members of Congress, including Sen. Russ Feingold (D-Wis.), Rep. Mike Doyle (D-Pa.), Rep. Tammy Baldwin (D-Wis.) and Rep. John Dingell (D-Mich.), have expressed similar concerns in recent days about the legal authority of the decision in letters to FCC Chairman Kevin Martin.