George Bonser wrote: > What would any provider think if a city said "sure, you can have access > to our residents' eyeballs. It will cost you $5 per subscriber per month". > Would Comcast or anyone go for that?
Dave Temkin wrote: > These are exactly what Franchise Agreements are for. Yes, cities charge > MSOs and LECs for access all the time. I've been lurking on this thread for awhile, but I feel a need to weigh in here. There are some critical distinctions between a city imposing conditions on access to its property and a telecommunications company imposing conditions on access to its network. There are also some important limitations to the cases in which cities can indeed impose any access restrictions, which prompt the question of why parallel policy limitations do not necessarily apply to last-mile companies. First, the justification for cities requiring things of companies in order to gain access to the local market are grounded in practical and policy considerations. On a very concrete level, putting wires in the ground requires permission from the city for rights-of-way (and such activities have genuine costs for the city). This permission comes in the form of the "Franchise Agreements" that Dave refers to. From a policy perspective, the city has an interest in ensuring that it gets the greatest value for its citizens out of the valuable last-mile concessions it grants to private parties. Historically, this meant that last-mile rights-of-way were a hook for enforcing customer service requirements, disciplining pricing, ensuring universal service, and supporting diversity of programming and "public access." Negotiating these terms with each municipality was the price that companies had to pay for monopoly access to local markets. What I think George's comment does not completely appreciate is that (ideally) cities are imposing such requirements at the behest of and for the benefit of the (local) public, whereas private constraints on local access are (by design) motivated by profit. Now, all of these requirements apply to providers of cable video content under the terms of the Cable Act of 1984 (which created a new Title in the Communications Act). None of them applied to LECs, which traditionally had a blanket permission to build out for their telecommunications services. The exception is for LECs that have started to offer video services. In that case, the same requirements kick in (for the video portion of those services). The exception to THAT is for states in which the LECs have successfully lobbied the state government to give them a blanket license to deploy video services statewide without negotiating locally (Michigan, for example, as opposed to Massachusetts). Whether or not you think such statewide agreements are a good thing tends to be a funciton of who you represent. In any event, the FCC has also further weakened localities' ability to impose requirements on even the video portion of these services (22 FCC Rcd. 5101 and 22 FCC Rcd. 19633). Importantly, for the NANOG crowd, none of these local controls applies to the broadband portion of such services. This all goes back to our artificially siloed Communications Act and some decisions made by the FCC almost a decade ago. The 2002 Cable Modem Order said that localities had no power to exercise authority over the broadband portion of such services. That means that they cannot demand payment for access to rights-of-way for broadband services, but it also means that they cannot impose public interest requirements on the provision of that service... for example that such service be provided universally to all citizens or that access to different types of content be provided on a non-discriminatory basis. The reasoning was that these services were not the video services envisioned in the Cable Act of 1984, but rather broadband services that the FCC was newly classifying as "deregulated." The 2002 Cable Modem Order was in fact the event that precipitated the 2005 "Brand X" Supreme Court decision that cemented the FCC's authority to reclassify last-mile broadband services not as common carriers but rather in a vaguely deregulated service. This helped lead to our modern debate about net neutrality. These jurisdictional turf wars are also at the heart of fights to allow cities to create municipally owned broadband networks that may then be leased on equal terms to all comers. It is also the reason that cities do not have the legal authority to compel "open access" or "non-discrimination" requirements on private networks within their boundaries. Broadband providers have understandably sought to gain near-exclusive control over their customers, and the legal framework helps them to avoid municipal networks and other requirements. Whether or not you believe that the local franchising regime that emerged in the 1980s makes sense for internet access today (not that it applies to broadband anyway), you must at least admit a fundamentally different incentive model compared to that of private companies. Whereas localities must now provide equal access to all companies that wish to do a physical buildout, those companies do not have any locally imposed requirement to provide equal access of use of their networks. Regards, Steve
