Fights to Follow Net Neutrality Order; NATOA Seeks Local Input in 2011
Fights in the court and on the Hill are likely after the FCC’s net neutrality decision, speakers said during a NATOA (National Association of Telecom Officers and Advisors) webinar about top communications issues in 2011 Monday. They urged state and local regulators’ input over issues like taxation, the proposed Comcast/NBC Universal merger and pole attachments.
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It’s almost certain that there will be court appeals even if the FCC moves to net neutrality rules under Title I instead of Title II, said Tillman Lay, partner with Spiegel & McDiarmid. Some observers have expected reduced risk of legal actions under Title I, at least as far as the major operators are concerned, Lay acknowledged. Oversight hearings on Capitol Hill are expected, said Gerry Lederer, counsel with Miller & Van Eaton. Additionally, a resolution overturning a ruling is possible but a presidential veto of any resolution of disapproval is almost certain, he said. Legislation overturning an FCC decision and amending the Telecom Act is likely to be proposed but enactment prospects are less clear, he said.
Likely net neutrality requirements under Title I for landline services include transparency, no blocking of lawful content and connection of non-harmful devices, no unreasonable discrimination (much is buried in the word “unreasonable") and allowing reasonable network management (case-by-case), including usage-based pricing, Lay said. Likely requirements for wireless include transparency and no blocking rules, he said.
Meanwhile, BTOP funding recipients should prepare for comprehensive oversight efforts, Lederer said. “Bottom line is there will be at least one if not more BTOP recipients having the money taken back from them,” he said. The Department of Commerce has made a commitment to the Congress to regulate the way BTOP grants are spent, he noted. BTOP recipients should “follow the rules and they can’t take your money back,” he said.
A D-Block re-auction is likely in 2011 as the U.S. observes the 10th anniversary of the 9/11 terrorist attacks, said Steve Traylor, NATOA executive director. No one wants that anniversary to pass without having addressed the lessons learned, he said. Both the House and the Senate seemed to favor reallocation of the D-Block to public safety and the question is how to fund the network, he said. He expects a shared public safety network -- meaning part of the network will be used by commercial operators.
Taxation would be a major issue for local telecom regulators, Traylor said. A more GOP-dominated Congress would increase the possibility of enactment of federal legislation pre-empting state and local telecom tax authority, he said. Possible legislation includes making the Internet Tax Freedom Act permanent, a wireless tax moratorium, digital goods and services tax fairness legislation, more general telecom tax revamp legislation, Streamlined Sales Tax Project legislation and DBA (Doing Business As) tax pre-emption legislation, he said.
PEG (public, educational and government channels) conditions are critical in the proposed Comcast/NBC Universal merger, especially for state and local entities, Lederer said. He expects DOJ approval of the merger in the next month or so and FCC approval with conditions in Q1 2011. Conditions may relate to issues like online and unaffiliated programmer access to Comcast platforms and competing MVPD and ISP access to Comcast/NBC Universal programming, he said. Lederer noted NATOA has requested that the FCC require Comcast to agree to not change channel placement without the consent of the PEG channel, not to move PEG channels to a digital delivery unless the PEG channel agrees or if all channels are moved to a digital delivery, to provide PEG On Demand only as an added benefit (and not as a replacement for traditional linear channels), and also require greater transparency on PEG treatment.
The outcome of FCC’s cell tower zoning approval “shot clock” proceeding (CD Oct 1 p3) is important not only for local zoning authority, but also for Section 253 rights of way authority, Lay said. If the FCC’s cell tower “shot clock” ruling is allowed to stand, that opens the door wider for an adverse ruling in the Level 3 proceeding (CD July 28/09), he said. Regarding the FCC’s pole attachment proceeding, Lay said the FCC’s proposed rules are largely pro-attacher and anti-pole owner. Municipalities are exempt from federal pole attachment rules but there are still risks on municipal broadband attachment, he said. All actions on Distributed Antenna Systems have been at the local level this year but the industry has asked the FCC to take a more active role, Lederer said.