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from: MultiChannel News

Locals Sue Over 90-Day Rule

By Linda Haugsted 4/9/2007

The Federal Communications Commission's recent order requiring local governments to approve applications from new video providers within 90 days represents an “abuse of discretion” and violates federal law, according to petitions for review filed April 3 by a coalition of local government groups.

The challenges were filed in the U.S. Courts of Appeal for the 3rd, 4th and 6th Circuits. (The multiple filings were made so the complaints would be heard in the district in which the petitioner is incorporated: for instance, the National Association of Counties is incorporated in Delaware, so that organization filed a challenge in the Fourth Circuit.) Petitions for review were filed on behalf of the Alliance for Communications Democracy, the Alliance for Community Media, the National Association of Counties, the National League of Cities, the National Association of Communications Officers and Advisors and the U.S. Conference of Mayors.

The two-page petitions challenge an FCC ruling released March 5. When a telephone company that already has facilities in a city's rights of way applies for video certification in that locality, according to the order, the city must act on that application within 90 days.

The commission concluded that current municipal proceedings drag on too long, frustrating competition.

Past local negotiations with telephone providers, including Verizon Communications and AT&T, have been lengthy in some cities. But some municipal officials have said the time is needed to negotiate the best possible deal with the new provider.

Many communities have “most-favored nation” clauses in their current cable contracts that require cities to negotiate terms with new entrants that are the same or substantially similar as the incumbent provider's franchise.

Cities have been particularly wary of AT&T's Internet-delivered video product, U-verse TV. Necessary infrastructure includes large above-ground powering vaults. Cities are concerned that placement of those vaults in the public rights-of-way may cause traffic or pedestrian hazards.

Communities have also disputed AT&T's assertion that it will not be providing a cable service under the federal definition of that term, because its signals arrive as packets of data as the consumer requests them, rather than as continuously streaming channels.

AT&T argues because it is not a cable system, it needs no franchise.

The appellants argue that the FCC order violates the U.S. Constitution, the federal Communications Act and the public notice requirements of the Administrative Procedure Act.