Free State: FCC Got Franchise Authority Remand Right

The Free State Foundation is hailing the FCC's planned Sept. 26 vote on an item regarding local franchising authorities (LFAs) as important and appropriate pushback on localities trying to re-regulate internet access.

In an online post, Free State Foundation senior fellow Seth Cooper called the proposal, which is teed up for a vote at the FCC's monthly public meeting, "legally solid" and said it would "protect Internet services from regulatory overreach" by "keeping local regulators in check consistent with the Communications Act."

Following the FCC's decision last fall to reclassify ISPs as information services and eliminate the rules against blocking, throttling or paid prioritization of internet access, various states and localities have been trying to restore the rules for their own state's internet customers, including through state laws and executive orders. That comes despite the FCC's assertion that states are preempted from trying to undo that deregulation by regulating the internet.

Local franchising authorities trying to tie broadband regs to traditional video service franchises is another potential flashpoint the FCC move would try to head off with the vote.

The FCC is proposing that a federal courts "mixed-use network ruling should be applied to prohibit LFAs from using their video franchising authority to regulate non-cable services offered over cable systems by incumbent cable operators." A court has remanded the FCC's earlier establishing that prohibition, so the current FCC is telling the court the FCC was right the first time, as is Cooper, who says this time around, the FCC has made a persuasive case for that Congress "intended to bar LFAs from regulating information services.”

"Rightly, the Commission’s proposal recognizes that LFA regulation of broadband services “would frustrate the light-touch information service framework established by Congress that the Commission previously has found necessary to promote investment and innovation," says Cooper.

The item, which is essentially the FCC's answer to the court remand of the earlier FCC ruling on LFA authority, also concludes that in-kind contributions LFA's secure as part of franchise agreements count toward the cap on franchise fees--excluding capital costs for public, educational and government (PEG) channels.

John Eggerton

Contributing editor John Eggerton has been an editor and/or writer on media regulation, legislation and policy for over four decades, including covering the FCC, FTC, Congress, the major media trade associations, and the federal courts. In addition to Multichannel News and Broadcasting + Cable, his work has appeared in Radio World, TV Technology, TV Fax, This Week in Consumer Electronics, Variety and the Encyclopedia Britannica.