The FCC: No Friend of Local Government

The Telecommunications Act of 1996 promised a new era of advanced communications services universally available at affordable prices all provided by carriers operating in a competitive environment.

The Telecommunications Act of 1996 promised a new era of advanced communications services, universally available, at affordable prices — all provided by carriers operating in a competitive environment. Whether or not this Promised Land materializes, local government will bear much of the brunt of the transition from a world of regulated monopolies to one of competing carriers.

Under the act, the Federal Communications Commission must manage the transition from regulation to competition. It has the power to pre-empt state and local rules if it sees them as impeding progress. It is also the FCC's responsibility to ensure universal service for all American communities.

But to date, the FCC appears less than friendly to local interests. Although it has set up a state and local government advisory committee composed of mayors, city councilors and county commissioners to represent local governments in areas such as right-of-way management and taxation, the committee does not appear to carry much weight in policy-setting.

Although the committee's recommendations have received fairly widespread visibility, two recent rulings are more illustrative of the FCC's true direction, particularly cases involving Troy, Mich., and Abilene, Texas.

On Sept. 18 the FCC issued a nondecision in an action by TCI Cablevision of Oakland County against the city of Troy, Mich. In December 1995, Troy enacted an ordinance requiring telecommunications companies to obtain a franchise, paying a one-time franchise adoption fee of $10,000 and an annual fee of 5 percent of gross revenues, or 40 cents per foot of underground lines and 35 cents per foot of overhead lines.

TCI challenged the ordinance in a filing with the FCC, claiming it violated the act, established a barrier to entry and exceeded the city's authority to manage rights-of-way and obtain fair and reasonable compensation. Now, after a long wait, the FCC has arrived at a decision. But unfortunately, it declined to rule on the most important issue — whether Troy's ordinance is a barrier to entry — based on the grounds that the ordinance does not directly affect TCI's operations in the city.

The FCC did, however, include several statements that indicated how it might rule in the future. In particular, it expressed a concern that "Troy and other local governments may be creating an unnecessary 'third tier' of telecommunications regulation that extends far beyond the statutorily protected municipal interests in managing the public rights-of-way and protecting public safety and welfare."

In other words, the FCC signaled that it does not believe local government should play a significant role in directing the development of telecommunications infrastructure.

On Sept. 26 the FCC issued a more troubling decision regarding several challenges to the Texas Public Utility Act of 1995, which prohibits municipalities and municipally owned electric companies from providing telecommunications services.

The city of Abilene filed a petition seeking pre-emption of the act's ban, contending that the ban violated the Telecommunications Act's ban on barriers to entry. In its ruling, the FCC pre-empted several of the act's provisions affecting private telecommunications carriers but left in place the act's prohibition on municipal provision of telecommunications services.

The FCC said, "Texas municipalities are not 'entities' separate and apart from the state of Texas" for the purpose of applying the act. Furthermore, it said that pre-empting the ban "would insert this commission into the relationship between the state of Texas and its political subdivisions in a manner that was not intended by [the act]."

The likely outcome of this ruling is that smaller Texas communities are unlikely to receive upgrades to their telecom services anytime soon. As the Michigan and Texas cases show, you can expect little relief anytime soon from the FCC. Instead, pay close attention to the courts and your state legislature.

Miles Fidelman is president of the nonprofit Center for Civic Networking. He can be reached at mfidelman@civicnet.org or (617) 241-9205.

X
This website uses cookies to enhance user experience and to analyze performance and traffic on our website. We also share information about your use of our site with our social media, advertising and analytics partners. Learn More / Do Not Sell My Personal Information
Accept Cookies
X
Cookie Preferences Cookie List

Do Not Sell My Personal Information

When you visit our website, we store cookies on your browser to collect information. The information collected might relate to you, your preferences or your device, and is mostly used to make the site work as you expect it to and to provide a more personalized web experience. However, you can choose not to allow certain types of cookies, which may impact your experience of the site and the services we are able to offer. Click on the different category headings to find out more and change our default settings according to your preference. You cannot opt-out of our First Party Strictly Necessary Cookies as they are deployed in order to ensure the proper functioning of our website (such as prompting the cookie banner and remembering your settings, to log into your account, to redirect you when you log out, etc.). For more information about the First and Third Party Cookies used please follow this link.

Allow All Cookies

Manage Consent Preferences

Strictly Necessary Cookies - Always Active

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data, Targeting & Social Media Cookies

Under the California Consumer Privacy Act, you have the right to opt-out of the sale of your personal information to third parties. These cookies collect information for analytics and to personalize your experience with targeted ads. You may exercise your right to opt out of the sale of personal information by using this toggle switch. If you opt out we will not be able to offer you personalised ads and will not hand over your personal information to any third parties. Additionally, you may contact our legal department for further clarification about your rights as a California consumer by using this Exercise My Rights link

If you have enabled privacy controls on your browser (such as a plugin), we have to take that as a valid request to opt-out. Therefore we would not be able to track your activity through the web. This may affect our ability to personalize ads according to your preferences.

Targeting cookies may be set through our site by our advertising partners. They may be used by those companies to build a profile of your interests and show you relevant adverts on other sites. They do not store directly personal information, but are based on uniquely identifying your browser and internet device. If you do not allow these cookies, you will experience less targeted advertising.

Social media cookies are set by a range of social media services that we have added to the site to enable you to share our content with your friends and networks. They are capable of tracking your browser across other sites and building up a profile of your interests. This may impact the content and messages you see on other websites you visit. If you do not allow these cookies you may not be able to use or see these sharing tools.

If you want to opt out of all of our lead reports and lists, please submit a privacy request at our Do Not Sell page.

Save Settings
Cookie Preferences Cookie List

Cookie List

A cookie is a small piece of data (text file) that a website – when visited by a user – asks your browser to store on your device in order to remember information about you, such as your language preference or login information. Those cookies are set by us and called first-party cookies. We also use third-party cookies – which are cookies from a domain different than the domain of the website you are visiting – for our advertising and marketing efforts. More specifically, we use cookies and other tracking technologies for the following purposes:

Strictly Necessary Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Functional Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Performance Cookies

We do not allow you to opt-out of our certain cookies, as they are necessary to ensure the proper functioning of our website (such as prompting our cookie banner and remembering your privacy choices) and/or to monitor site performance. These cookies are not used in a way that constitutes a “sale” of your data under the CCPA. You can set your browser to block or alert you about these cookies, but some parts of the site will not work as intended if you do so. You can usually find these settings in the Options or Preferences menu of your browser. Visit www.allaboutcookies.org to learn more.

Sale of Personal Data

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Social Media Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.

Targeting Cookies

We also use cookies to personalize your experience on our websites, including by determining the most relevant content and advertisements to show you, and to monitor site traffic and performance, so that we may improve our websites and your experience. You may opt out of our use of such cookies (and the associated “sale” of your Personal Information) by using this toggle switch. You will still see some advertising, regardless of your selection. Because we do not track you across different devices, browsers and GEMG properties, your selection will take effect only on this browser, this device and this website.