appa legal conference seattle, washington … legal conference seattle, washington october 14, 2007...
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APPA LEGAL CONFERENCEAPPA LEGAL CONFERENCESeattle, Washington Seattle, Washington
October 14, 2007October 14, 2007
Workshop on New DevelopmentsWorkshop on New DevelopmentsIn Communications LawIn Communications Law
Jim Baller and Sean StokesJim Baller and Sean StokesThe Baller Herbst Law GroupThe Baller Herbst Law Group
2014 P Street, NW2014 P Street, NWWashington, DC 20036Washington, DC 20036
(202) 833(202) [email protected]@Baller.com
[email protected]@Baller.com
OverviewOverview
•• The Big PictureThe Big Picture –– Public Broadband and a Public Broadband and a National Broadband StrategyNational Broadband Strategy
•• Services in TransitionServices in Transition –– IPIP--Enabled Services and DTVEnabled Services and DTV
•• CompetitionCompetition –– Access to Content and CustomersAccess to Content and Customers
•• InfrastructureInfrastructure –– Poles, Towers, and TunnelsPoles, Towers, and Tunnels
•• Privacy, Law Enforcement, and Property RightsPrivacy, Law Enforcement, and Property Rights–– CALEA, CPNI, CopyrightsCALEA, CPNI, Copyrights
•• Other IssuesOther Issues –– Universal Service, E911, etc.Universal Service, E911, etc.
Barriers To Public EntryBarriers To Public Entry
Nixon v. Missouri Municipal LeagueNixon v. Missouri Municipal League
State State ““barriersbarriers”” today: today: ALAL, , ARAR, , COCO, , FLFL, , LALA, , MNMN, , MOMO, , NENE, , NVNV, , PAPA, , SCSC, , TNTN, T, TXX, , UTUT, , VAVA, , WAWA, , WIWI
1515--11--2 in State battles in 20052 in State battles in 2005--0707
Federal measures Federal measures
S.1821 S.1821 –– LautenbergLautenberg--SmithSmith--KerryKerry--McCainMcCain--SnoweSnowe--McCaskillMcCaskill--StevensStevens--InouyeInouye
H.R.3281 H.R.3281 -- BoucherBoucher--UptonUpton
WhatWhat’’s Really at Stake s Really at Stake ––AmericaAmerica’’s Global Competitivenesss Global Competitiveness
•• Much of what we do at work, at home, and at play will Much of what we do at work, at home, and at play will increasingly be done through broadband, at much faster speeds increasingly be done through broadband, at much faster speeds than todaythan today
•• World economy is growing interconnected and World economy is growing interconnected and ““flatflat””
•• We are going to lose most of our manufacturing jobs to China, We are going to lose most of our manufacturing jobs to China, India, and other lowIndia, and other low--cost nationscost nations
•• Our best hope: prepare our communities and population ASAP Our best hope: prepare our communities and population ASAP for highfor high--tech, infotech, info--based jobsbased jobs
•• Critical need: a national broadband policy to promote prompt, Critical need: a national broadband policy to promote prompt, affordable, and ubiquitous access to advanced communications affordable, and ubiquitous access to advanced communications networksnetworks
AmericaAmerica’’s National Broadband Policys National Broadband Policy
Source: Gary Bolles
So, How Are We Doing?So, How Are We Doing?
““America's record in expanding broadband communication is so America's record in expanding broadband communication is so poor that it should be viewed as an poor that it should be viewed as an outrageoutrage by every consumer by every consumer and businessperson in the country. Too few of us have broadbandand businessperson in the country. Too few of us have broadbandconnections, and those who do pay too much for service that is tconnections, and those who do pay too much for service that is too oo slow. It's hurting our economy, and things are only going to geslow. It's hurting our economy, and things are only going to get t worse if we don't do something about it.worse if we don't do something about it.””
FCC Commissioner Michael CoppsFCC Commissioner Michael CoppsWashington PostWashington Post, January 8, 2007, January 8, 2007
““BroadbandBroadband”” in the United Statesin the United States
•• FCC defines FCC defines ““broadbandbroadband”” as the capacity to transmit as the capacity to transmit 200200kilobits/second in one direction kilobits/second in one direction –– ridiculously lowridiculously low
•• US currently has about US currently has about 65 million65 million broadband lines, tops in the broadband lines, tops in the world, but China will soon overtake usworld, but China will soon overtake us
•• FCC pretends that everyone in FCC pretends that everyone in 9999 percent of US zip codes now has percent of US zip codes now has access to broadband access to broadband –– but everyone knows that this is indefensiblebut everyone knows that this is indefensible
•• FCCFCC’’s flawed assumptions and practices under review in FCC s flawed assumptions and practices under review in FCC rulemaking, subject to Markey and Inouye billsrulemaking, subject to Markey and Inouye bills
Broadband Comparisons
100 Mbps Ethernet
3.7 Mbps MPEG-2 CBR VHS Quality
Video Stream
20 Mbps MPEG-2 HDTV Quality Video
Stream
64 Kbps Phone Line
128 Kbps ISDN
800 Kbps
1.544 Mbps T1
10 Mbps Ethernet
Complex Work at home
Advanced Educational & Medical Applications
FTTN/C
FTTH+▼
Wireless, DSL, BPL,Cable Modems
Dial-up
FiOS(5 to 30)
Japan, Amsterdam, Paris, Vienna, Hong Hong, Stockholm, …
ConnectKY(256 Kbps)
US Broadband Compared to Other NationsUS Broadband Compared to Other Nations
Broadband lines as Broadband lines as US 1US 1stst in 1990sin 1990s ↓↓ 44thth in 2001in 2001 ↓↓↓↓% of Population: % of Population: 1010th th in 2004in 2004 ↓↓↓↓↓↓ 1515--2424thth nownow
Average Speed (15Average Speed (15thth): US: 1.97 Mbps Japan: 61 Mbps): US: 1.97 Mbps Japan: 61 Mbps
Price/Mbps (13Price/Mbps (13thth): US: $3.18 Japan $0.22): US: $3.18 Japan $0.22
In short, Americans get less than 1/30 the bandwidth that In short, Americans get less than 1/30 the bandwidth that the Japanese do and pay more than 20 times as much.the Japanese do and pay more than 20 times as much.
More details follow More details follow …………
Broadband Subscribers/100 InhabitantsBroadband Subscribers/100 Inhabitants(as of December 2006)(as of December 2006)
Source: OECD
Source: CWA, Speed Matters
Population Density Excuse DoesnPopulation Density Excuse Doesn’’t Hold Upt Hold Up
CountryCountry Average Data Speed Average Data Speed (Mbps)(Mbps)
Population/Population/Square KmSquare Km
WorldWorldRank inRank inDensityDensity
South KoreaSouth Korea 4545 480480 1919
JapanJapan 6161 339339 3030
FranceFrance 1717 8989 110110
United StatesUnited States 1.91.9 3131 172172
Sweden Sweden 1818 2020 185185
FinlandFinland 2121 15.515.5 190190
CanadaCanada 7.67.6 3.23.2 219219
Source: Wikipedia
Source: OECD Communications Outlook 2007
Fiber Service in ParisFiber Service in Paris
For For €€ 29.99 / month (~$41) a subscriber can get 29.99 / month (~$41) a subscriber can get ----
•• 100 Mbps download, 50 Mbps upload 100 Mbps download, 50 Mbps upload
•• Unlimited calls to fixed lines throughout France and Unlimited calls to fixed lines throughout France and to many other countriesto many other countries
•• More than 100 TV channels and High Definition (HD) More than 100 TV channels and High Definition (HD) channels on two televisionschannels on two televisions
•• Various free equipment optionsVarious free equipment options
Hong Kong Broadband Network Hong Kong Broadband Network v. Verizon v. Verizon FiOSFiOS
VerizonVerizon5/2 Mbps $39.99/mo5/2 Mbps $39.99/mo
15/2 Mbps $49.99/mo15/2 Mbps $49.99/mo30/5 Mbps30/5 Mbps $179.99/mo$179.99/mo100 Mbps100 Mbps Not AvailableNot Available200 Mbps200 Mbps Not AvailableNot Available1000 Mbps1000 Mbps Not AvailableNot Available
Hong Kong BB NetworkHong Kong BB Network5 Mbps Not available5 Mbps Not available10 Mbps Not available10 Mbps Not available25 Mbps25 Mbps ??100 Mbps100 Mbps $48.50/mo$48.50/mo200 Mbps200 Mbps $88.20/mo$88.20/mo1000 Mbps1000 Mbps $215.40/mo$215.40/mo
Opponents: Why Municipalities Are Horning InOpponents: Why Municipalities Are Horning In
•• So they can So they can ““use cutuse cut--throat means in an effort to establish throat means in an effort to establish marketplace monopoliesmarketplace monopolies””
•• So they can So they can ““recklessly undercut incumbent providers in hopes of recklessly undercut incumbent providers in hopes of forcing them to capitulate and leave the market placeforcing them to capitulate and leave the market place””
•• So they can So they can ““snuff out the prospects for real competitive snuff out the prospects for real competitive benefits for consumersbenefits for consumers””
•• So they can fulfill So they can fulfill ““selfself--centered goals centered goals –– fattening payfattening pay--checks, collecting political chips, and saving their jobschecks, collecting political chips, and saving their jobs””
Source: WiFi Waste: The Disaster of MunicipalCommunications Networks (Feb. 2007)
The Real DriversThe Real Drivers
•• Economic development Economic development •• Educational and occupational opportunityEducational and occupational opportunity•• Public safety and homeland security Public safety and homeland security •• Digital equityDigital equity•• Local, regional, and global competitivenessLocal, regional, and global competitiveness•• Affordable modern health careAffordable modern health care•• Reduced traffic and environmental burdensReduced traffic and environmental burdens•• Cultural enrichmentCultural enrichment•• Control own destinyControl own destiny•• Quality of lifeQuality of life
Key Shortcomings of OpponentsKey Shortcomings of Opponents’’ ArgumentsArguments•• ““StudiesStudies”” contain many significant errors and omissions, contain many significant errors and omissions,
dubious analytical methods, flawed conclusions, and harsh dubious analytical methods, flawed conclusions, and harsh rhetoric reflecting strong biasrhetoric reflecting strong bias
•• Studies acknowledge significant data gaps but still draw Studies acknowledge significant data gaps but still draw preconceived negative conclusionspreconceived negative conclusions
•• Studies focus on early years, when costs high and revenues Studies focus on early years, when costs high and revenues kustkust beginning to grow beginning to grow –– all capitalall capital--intensive projects lose intensive projects lose money during their early years, whether public or privatemoney during their early years, whether public or private
•• Studies selectively apply privateStudies selectively apply private--sector criteria to public sector criteria to public projects, while ignoring indicia of success (e.g., EBITDA)projects, while ignoring indicia of success (e.g., EBITDA)
•• Studies ignoreStudies ignore huge nonhuge non--fee financial benefitsfee financial benefits to communityto community
The Myth of Municipal CrossThe Myth of Municipal Cross--SubsidiesSubsidies
•• For legal and political reasons, municipalities rarely engage inFor legal and political reasons, municipalities rarely engage incrosscross--subsidization subsidization –– would be very visiblewould be very visible
•• Private entities routinely crossPrivate entities routinely cross--subsidize broadband subsidize broadband on a massive scaleon a massive scale
““Telco TV providers might not break even, on an Telco TV providers might not break even, on an annual basis, for 10 to 15 years, says Albert Lin, annual basis, for 10 to 15 years, says Albert Lin, an analyst at American Technology Research.an analyst at American Technology Research.””
•• Telcos use telephone and wireless revenues to XTelcos use telephone and wireless revenues to X--SubSub
•• CablecosCablecos use cable television revenues to Xuse cable television revenues to X--SubSub
•• Companies donCompanies don’’t ask phone, wireless, or TV subst ask phone, wireless, or TV subs
•• CablecosCablecos also often engage in crossalso often engage in cross--market predatory market predatory or discriminatory pricing or discriminatory pricing
Is Municipal Wireless Dead?Is Municipal Wireless Dead?
OpponentsOpponents•• EarthLink and others in big EarthLink and others in big
markets are backing out markets are backing out •• Cost and timeCost and time--toto--market market
higher than expectedhigher than expected•• TakeTake--rates lower than rates lower than
projected for paid servicesprojected for paid services•• Private sector is improving Private sector is improving
services, dropping ratesservices, dropping rates•• Wireless has insufficient Wireless has insufficient
bandwidth for today, futurebandwidth for today, future•• WonWon’’t penetrate to interiorst penetrate to interiors
SupportersSupporters•• Media overreacting Media overreacting –– again again •• Only Only ““free lunchfree lunch”” models failing models failing •• For most localities, For most localities, ““free lunchfree lunch””
was never an optionwas never an option•• Key drivers still there (last slide)Key drivers still there (last slide)•• ““Anchor tenancyAnchor tenancy”” to reduce risksto reduce risks•• Ways exist to increase takeWays exist to increase take--ratesrates•• For some localities, wireless is For some localities, wireless is
the only option, or a key optionthe only option, or a key option•• Some consultants advise Some consultants advise
focusing solely on municipal usesfocusing solely on municipal uses
SOURCE: The Gartner Group via Gary Bolles
The Gartner GroupThe Gartner Group’’s s ““Hype CycleHype Cycle””
IPIP--Enabled ServicesEnabled Services•• Traditional Traditional ““SilosSilos”” –– Telecom, Cable, Radio, Telecom, Cable, Radio, CMRsCMRs, , ““EnhancedEnhanced”” or or
““InformationInformation””
•• Convergence Convergence –– technology, business models, etc.technology, business models, etc.
•• Internet access service Internet access service •• FCC Cable Modem Declaratory Ruling (upheld in FCC Cable Modem Declaratory Ruling (upheld in Brand XBrand X), ),
FCC Wireline, BPL, Wireless rulingsFCC Wireline, BPL, Wireless rulings•• Beware: Bundled v. pure transport service (more later)Beware: Bundled v. pure transport service (more later)
•• VoIP VoIP •• FCCFCC’’s s PulverPulver, , AT&TAT&T, , VonageVonage rulings, IPrulings, IP--Enabled Docket Enabled Docket •• Interconnected VoIP obligations Interconnected VoIP obligations ---- E911, Universal Service, E911, Universal Service,
CALEA, CPNI, and capabilities for people with disabilitiesCALEA, CPNI, and capabilities for people with disabilities
•• IPTVIPTV•• AT&T AT&T ““UU--VerseVerse”” litigation in CA, IL, CTlitigation in CA, IL, CT
The DTV TransitionThe DTV Transition
•• BackgroundBackground
•• Converter box separation issuesConverter box separation issues•• July 1, 2007 July 1, 2007 –– Compliance deadlineCompliance deadline•• Comcast waiver deniedComcast waiver denied
•• FCCFCC’’s Recent DTV Orders Recent DTV Order•• DTV transition deadline February 16, 2009DTV transition deadline February 16, 2009•• PostPost--deadline analog obligations for 3 years deadline analog obligations for 3 years •• Cable operators can Cable operators can ““downconvertdownconvert”” analog signalsanalog signals•• CaseCase--byby--case exceptions for small cable systemscase exceptions for small cable systems
•• NTIA coupon and educational programsNTIA coupon and educational programs
Access to ContentAccess to Content
•• Video Programming From BroadcastersVideo Programming From Broadcasters•• Must Carry/Retransmission Consent/Network Must Carry/Retransmission Consent/Network
NonNon--DuplicationDuplication•• No No ““dual must carrydual must carry””•• ““Good FaithGood Faith”” negotiationsnegotiations•• FCC rejects ACA petitionFCC rejects ACA petition
•• Video Programming From Satellite DistributorsVideo Programming From Satellite Distributors•• Exclusive contract rules extended 5 yearsExclusive contract rules extended 5 years•• NPRM: terrestrial loophole, tying arrangements, NPRM: terrestrial loophole, tying arrangements,
shared shared headendsheadends, security measures, etc., security measures, etc.
•• NCTC NCTC ““MoratoriumMoratorium””
Access to CustomersAccess to Customers
•• FCC Rulemaking on exclusive agreements at MDUs and other FCC Rulemaking on exclusive agreements at MDUs and other multimulti--resident real estate developmentsresident real estate developments
•• Key stakeholders: Incumbent cable operators, new entrants, Key stakeholders: Incumbent cable operators, new entrants, developers, MDU ownersdevelopers, MDU owners
•• Focus on exclusive service agreements, but also other forms Focus on exclusive service agreements, but also other forms of exclusivityof exclusivity
•• Possible exemptions Possible exemptions •• The The ““buzzbuzz”” in Washingtonin Washington
•• Marco Island Cable v. ComcastMarco Island Cable v. Comcast•• Federal jury: deceptive and unfair trade practicesFederal jury: deceptive and unfair trade practices•• Wide range of anticompetitive practices surrounding inside Wide range of anticompetitive practices surrounding inside
wiringwiring
Infrastructure IssuesInfrastructure Issues
•• Poles, ducts, conduits, rights of wayPoles, ducts, conduits, rights of way•• TowersTowers•• Street lights and traffic signals Street lights and traffic signals •• Tunnels, rooftops, and other facilitiesTunnels, rooftops, and other facilities
Public Power Exemption Public Power Exemption ---- ““UtilityUtility””
•• The term ''utility'' means any person who is a local exchange The term ''utility'' means any person who is a local exchange carrier or an electric, gas, water, steam, or other public utilicarrier or an electric, gas, water, steam, or other public utility, ty, and who owns or controls poles, ducts, conduits, or rightsand who owns or controls poles, ducts, conduits, or rights--ofof--way used, in whole or in part, for any wire communications. way used, in whole or in part, for any wire communications. Such term does not include...any person owned by...any StateSuch term does not include...any person owned by...any State..””
““The term ''State'' means any State . . .The term ''State'' means any State . . . or any political or any political subdivision, agency, or instrumentality thereof.subdivision, agency, or instrumentality thereof.””
47 U.S.C. 47 U.S.C. §§§§ 224(a)(1),(a)(3).224(a)(1),(a)(3).
Historical Background of FCC RulesHistorical Background of FCC Rules
•• Before 1978 Before 1978 ---- telephone and electric utilitiestelephone and electric utilities
•• The federal Pole Attachment Act of 1978The federal Pole Attachment Act of 1978•• Cable onlyCable only•• No access No access ---- just price, terms and conditionsjust price, terms and conditions•• Exemption for municipals, coops and railroadsExemption for municipals, coops and railroads
•• FCC decisions in the 1970FCC decisions in the 1970’’s and 1980s and 1980’’ss
•• State preemption and other actionsState preemption and other actions
•• The federal Telecommunications Act of 1996 adds The federal Telecommunications Act of 1996 adds access requirements and telecom carriers, and access requirements and telecom carriers, and continues municipal exemptioncontinues municipal exemption
General Duty to Provide AccessGeneral Duty to Provide Access
““A A utilityutility shall provide a shall provide a cable television system or any cable television system or any telecommunications carriertelecommunications carrier with with nondiscriminatorynondiscriminatoryaccess to any pole, duct, conduit, or rightaccess to any pole, duct, conduit, or right--ofof--way owned way owned or controlled by it.or controlled by it.””
““ [A] utility providing electric service may deny a cable [A] utility providing electric service may deny a cable television system or any telecommunications carrier television system or any telecommunications carrier access to its poles, ducts, conduits, or rightsaccess to its poles, ducts, conduits, or rights--ofof--way, way, on a nonon a non--discriminatory basis where there is insufficient discriminatory basis where there is insufficient capacity and for reasons of safety, reliability and generally capacity and for reasons of safety, reliability and generally applicable engineering purposes.applicable engineering purposes.””
47 U.S.C. 47 U.S.C. §§§§ 224(f)(1), (f)(2). 224(f)(1), (f)(2).
Implications of the Municipal ExemptionImplications of the Municipal Exemption
•• Municipals are not subject to federal Municipals are not subject to federal access access rulesrules
•• Municipals are not subject to federal Municipals are not subject to federal rate requirementsrate requirements, , including distinctions among providers and time periodsincluding distinctions among providers and time periods
•• Municipals are not subject to federal Municipals are not subject to federal procedural requirementsprocedural requirements•• timing and content of responses to requests for accesstiming and content of responses to requests for access•• 6060--day written notice of changesday written notice of changes•• complaint processescomplaint processes
Section 253 Section 253 ---- Ban on Barriers to EntryBan on Barriers to Entry
““(a) In General.(a) In General.----No State or local statute or regulation, or other No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effecState or local legal requirement, may prohibit or have the effect t of prohibiting the ability of any entity to provide any interstaof prohibiting the ability of any entity to provide any interstate or te or intrastate telecommunications service.intrastate telecommunications service.””
““(c) State and Local Government Authority. (c) State and Local Government Authority. ---- Nothing in this Nothing in this section affects the authority of a State or local government to section affects the authority of a State or local government to manage the public rightsmanage the public rights--ofof--way or to require way or to require fair and reasonable fair and reasonable compensationcompensation from telecommunications providers, on a from telecommunications providers, on a competicompeti--tivelytively neutralneutral andand nondiscriminatorynondiscriminatory basis, for use of public rightsbasis, for use of public rights--ofof--way on away on a nondiscriminatorynondiscriminatory basis, if the compensation required basis, if the compensation required is publicly disclosed by such government.is publicly disclosed by such government.””
Implications of Section 253Implications of Section 253
•• Section 253(a) can be read to prohibit municipal entities from Section 253(a) can be read to prohibit municipal entities from demanding unjust, unreasonable or discriminatory terms or demanding unjust, unreasonable or discriminatory terms or conditions that have effect of a barrier to entryconditions that have effect of a barrier to entry
•• Section 253(c) literally imposes no affirmative duties, but caseSection 253(c) literally imposes no affirmative duties, but cases s and FCC orders have read it that wayand FCC orders have read it that way
•• Legislative history and several recent cases say that Legislative history and several recent cases say that ““nonnon--discriminatorydiscriminatory”” does not mean does not mean ““equalequal””
•• CONCLUSION: municipal entities have substantial flexibility CONCLUSION: municipal entities have substantial flexibility but cannot discriminate unreasonablybut cannot discriminate unreasonably
Other Potentially Relevant RequirementsOther Potentially Relevant Requirements
•• State statutes and public service commission rulings, especiallyState statutes and public service commission rulings, especiallyin states that have preempted federal authority to regulate polein states that have preempted federal authority to regulate poleattachmentsattachments
•• Note state laws on municipal entry (e.g., Virginia)Note state laws on municipal entry (e.g., Virginia)
•• Local ordinances, franchises and chartersLocal ordinances, franchises and charters
•• Existing pole use agreements Existing pole use agreements
•• Imputation requirements for municipal utilities that provide Imputation requirements for municipal utilities that provide telecommunications services.telecommunications services.
Federal Access RequirementsFederal Access Requirements
•• Not a comprehensive regime of rulesNot a comprehensive regime of rules
•• 5 specific rules plus guidelines and presumptions5 specific rules plus guidelines and presumptions
•• Procedures for requests, responses and dispute resolutionProcedures for requests, responses and dispute resolution
•• Enforcement through complaint processEnforcement through complaint process
•• FCC ongoing monitoringFCC ongoing monitoring
The FCCThe FCC’’s Five Access Ruless Five Access Rules
11 FCC will recognize industry standards FCC will recognize industry standards ---- e.g., NESCe.g., NESC22 FCC will honor federal requirements FCC will honor federal requirements ---- e.g., FERC, OSHAe.g., FERC, OSHA33 FCC will defer to State requirementsFCC will defer to State requirements
•• Where State has preempted, FCC has no authority Where State has preempted, FCC has no authority •• Where not, federal guidelines will control, but only if a Where not, federal guidelines will control, but only if a
direct conflict exists direct conflict exists 44 All terms and conditions must be nonAll terms and conditions must be non--discriminatorydiscriminatory55 A utility may not favor itselfA utility may not favor itself
Access Access ---- Guidelines and PresumptionsGuidelines and Presumptions•• Capacity expansionCapacity expansion
•• Need not expand capacity to meet needs of third parties if no Need not expand capacity to meet needs of third parties if no such need for utility itselfsuch need for utility itself
•• utilities must explore potential accommodations in good faithutilities must explore potential accommodations in good faith•• Reservation of spaceReservation of space
•• only for core electric service, pursuant to only for core electric service, pursuant to ““bona fide planbona fide plan””•• must make reserved space available until neededmust make reserved space available until needed•• when need space, can get it back or require payment for when need space, can get it back or require payment for
expansionexpansion•• Threshold for access dutyThreshold for access duty
•• if if anyany facilities available to third parties, facilities available to third parties, all all facilities availablefacilities available•• if if useuse any wire communications, including for electric any wire communications, including for electric
service, open service, open all all poles, conduits, ducts and ROW to access poles, conduits, ducts and ROW to access by third partiesby third parties
Guidelines and Presumptions (Continued...)Guidelines and Presumptions (Continued...)
•• NonNon--electric utilitieselectric utilities•• exception for capacity, safety. . . does not apply only to exception for capacity, safety. . . does not apply only to
““electricelectric”” utilitiesutilities•• Property rightsProperty rights
•• utility need not exercise available eminent domain rights on utility need not exercise available eminent domain rights on behalf of third partiesbehalf of third parties
•• Safety considerationsSafety considerations•• cannot insist on using own workers, but can require that cannot insist on using own workers, but can require that
attacherattacher’’s workers meet same training standards as s workers meet same training standards as electrical workerselectrical workers
Modifications to FacilitiesModifications to Facilities
•• Timing and Manner of NoticeTiming and Manner of Notice ---- absent private agreement or absent private agreement or emergency, 60 days written noticeemergency, 60 days written notice
•• Allocating Costs of Modifications and MaintenanceAllocating Costs of Modifications and Maintenance•• initiating party pays all costs unless others joininitiating party pays all costs unless others join•• if others join, base allocation on proportion of new space if others join, base allocation on proportion of new space
occupiedoccupied•• ““piggybackerspiggybackers”” must pay proportionate sharemust pay proportionate share•• paying parties can recover from subsequent attacherspaying parties can recover from subsequent attachers•• owner keeps additional revenues from excess capacityowner keeps additional revenues from excess capacity
OverlashingOverlashing
•• Host and thirdHost and third--party party overlashingoverlashing must be permitted, subject to must be permitted, subject to safety, reliability and engineering constraintssafety, reliability and engineering constraints
•• Utilities should handle additional burdens through standard Utilities should handle additional burdens through standard engineering practices engineering practices
•• OverlashOverlash is notis not an additional attachmentan additional attachment
•• OverlashOverlash by either host or third party presumed to share one by either host or third party presumed to share one foot of hostfoot of host’’s space for purposes of allocating costs of usable s space for purposes of allocating costs of usable spacespace
•• No additional attachment fee for No additional attachment fee for overlashingoverlashing
Federal Rate RequirementsFederal Rate Requirements
•• Rules apply only when negotiations failRules apply only when negotiations fail
•• Telecom Act distinguishes by:Telecom Act distinguishes by:•• Types of providersTypes of providers (e.g., cable system, telecom carrier) but (e.g., cable system, telecom carrier) but
not between technologies (wire and wireless)not between technologies (wire and wireless)•• Types of facilitiesTypes of facilities ---- poles, conduits, ducts, ROWpoles, conduits, ducts, ROW
•• Rate formulas generally apply only to traditional poles Rate formulas generally apply only to traditional poles and conduits, NOT to streetlight poles, light standards, and conduits, NOT to streetlight poles, light standards, traffic lights and booms, rooftops, traffic lights and booms, rooftops, steam tunnels, etc. steam tunnels, etc.
•• Types of spaceTypes of space ---- usable or unusableusable or unusable
•• Rules rely heavily on Rules rely heavily on rebuttablerebuttable presumptionspresumptions
•• Cable systems that use pole attachments Cable systems that use pole attachments ““solely to provide cable solely to provide cable serviceservice”” remain subject to the Section (d)(3) cable formularemain subject to the Section (d)(3) cable formula
•• Telecom carriers and cable systems that provide telecom Telecom carriers and cable systems that provide telecom services are subject to new services are subject to new ““Section (e)(1)Section (e)(1)”” formulaformula
•• Cable systems do not lose the benefit of the cable formula by Cable systems do not lose the benefit of the cable formula by providing information services, including Internet accessproviding information services, including Internet access
•• Cable systems do not lose the benefit of the cable formula if thCable systems do not lose the benefit of the cable formula if they ey lease lease ““dark fiber,dark fiber,”” unless the fiber is used to provide telecom unless the fiber is used to provide telecom serviceservice
What Formulas Apply?What Formulas Apply?
The Section (d)(3) Cable FormulaThe Section (d)(3) Cable Formula
Maximum Rate =Maximum Rate =
Space occupied by CATVSpace occupied by CATV x Net Cost of x Carryingx Net Cost of x CarryingTotal Usable SpaceTotal Usable Space Bare Pole ChargesBare Pole Charges
Key Assumptions and DefinitionsKey Assumptions and Definitions
•• Average height of pole is 37.5 feet Average height of pole is 37.5 feet
•• Average usable space is 13.5 feetAverage usable space is 13.5 feet
•• Cable attachment occupies 1 footCable attachment occupies 1 foot
•• 4040”” clearance between electric and communications space clearance between electric and communications space charged to electric utility charged to electric utility
•• ““Net cost of bare poleNet cost of bare pole”” calculated by formula in Appendix B to calculated by formula in Appendix B to FCC R& O, 2 FCC Rcd 4387 (1987) FCC R& O, 2 FCC Rcd 4387 (1987)
•• ““Carrying chargesCarrying charges”” are expenses of owning and maintaining are expenses of owning and maintaining poles without pole attachments, including administrative, poles without pole attachments, including administrative, maintenance and depreciation expenses, a return on maintenance and depreciation expenses, a return on investment, and taxesinvestment, and taxes
The Section (e)(1) Telecom FormulaThe Section (e)(1) Telecom Formula
Maximum Rate =Maximum Rate = Unusable Space Factor + Usable Space FactorUnusable Space Factor + Usable Space Factor
Unusable Space Factor =Unusable Space Factor =
22 x x Unusable SpaceUnusable Space x x Net Cost of Bare PoleNet Cost of Bare Pole x Carrying Chargex Carrying Charge3 Pole Height Number of Attachers 3 Pole Height Number of Attachers RateRate
Usable Space Factor =Usable Space Factor =
Space Occupied by AttachmentSpace Occupied by Attachment x x Total Usable SpaceTotal Usable Space x Net Cost x Carrying x Net Cost x Carrying Total Usable Space Pole Height Total Usable Space Pole Height Bare Pole Charge Bare Pole Charge
RateRate
Additional Assumptions for Allocating Additional Assumptions for Allocating Unusable SpaceUnusable Space
•• Attaching entities include all providers of cable or telecom serAttaching entities include all providers of cable or telecom services, vices, including pole owners, including pole owners, ILECsILECs and government entitiesand government entities
•• Each attacher uses same amount of space, regardEach attacher uses same amount of space, regard--less of number, size, location of attachmentsless of number, size, location of attachments
•• Each utility can calculate presumptive average number of attachiEach utility can calculate presumptive average number of attaching ng entities for rural, urban or urbanized areas, based on U.S. Censentities for rural, urban or urbanized areas, based on U.S. Census us Bureau definitionsBureau definitions
•• If lease of If lease of ““dark fiberdark fiber”” to third party results in provision to third party results in provision of cable or telecom service, Section (e)(1) formula appliesof cable or telecom service, Section (e)(1) formula applies
Wireless AttachmentsWireless Attachments
•• Supreme Court has confirmed that pole attachment rights Supreme Court has confirmed that pole attachment rights extend to extend to wireless wireless ““telecommunications servicetelecommunications service”” providersproviders
•• FCC has not established rates but assumes use of reasonable FCC has not established rates but assumes use of reasonable market rates (Philadelphia Electric case)market rates (Philadelphia Electric case)
•• Retail WiFi Retail WiFi generally not a generally not a ““telecommunications servicetelecommunications service”” but if but if transmission is offered on a wholesale, nontransmission is offered on a wholesale, non--discriminatory basis discriminatory basis similar to common carrier service, provide may be a similar to common carrier service, provide may be a ““telecommunications carriertelecommunications carrier”” entitled to pole attachmentsentitled to pole attachments
•• Power issues (metered v. bulk, 24/7, Power issues (metered v. bulk, 24/7, ““bank switched,bank switched,”” etc.)etc.)
Broadband over PowerlinesBroadband over Powerlines
•• FCC has held that it is an FCC has held that it is an ““information serviceinformation service””
•• No attachment rights, as it not a No attachment rights, as it not a ““telecommunications servicetelecommunications service””
•• If voluntary access, rate just for physical attachment to pole? If voluntary access, rate just for physical attachment to pole? For share of wire?For share of wire?
•• Cost allocation issues?Cost allocation issues?
Opportunity to Take Opportunity to Take ““High GroundHigh Ground””Confirmed in Seattle CaseConfirmed in Seattle Case
•• City exempt from federal law; subject only to stateCity exempt from federal law; subject only to state’’s s ““just, just, reasonable, nondiscriminatory and sufficientreasonable, nondiscriminatory and sufficient”” ratesrates
•• City can apply single formula for cable and telecomCity can apply single formula for cable and telecom
•• City can implement rate increases immediately City can implement rate increases immediately
•• City does not have to apply 2/3 limit for unusable spaceCity does not have to apply 2/3 limit for unusable space
•• City can allocate City can allocate ““direct spacedirect space”” by usage (cable 1 foot, by usage (cable 1 foot, telephone 2 feet, electric utility the rest)telephone 2 feet, electric utility the rest)
•• City can allocate City can allocate ““supportsupport”” space (including 4space (including 4--foot safety foot safety clearance) per capitaclearance) per capita
TCI Cablevision of Washington, Inc. v. City of SeattleTCI Cablevision of Washington, Inc. v. City of Seattle, No. , No. 9797--22--0239502395--5SEA (Super. Ct. for King 5SEA (Super. Ct. for King CtyCty. , WA, 5/3/98). , WA, 5/3/98)
APPA Model AgreementAPPA Model Agreement
•• Attempt to balance need of all stakeholdersAttempt to balance need of all stakeholders
•• Single uniform rate for all attaching entitiesSingle uniform rate for all attaching entities
•• Allocate 40Allocate 40”” inch safety space to noninch safety space to non--usable support space to usable support space to all pole users on a per capita basisall pole users on a per capita basis
•• Up to date engineeringUp to date engineering
•• Electronic rate calculatorElectronic rate calculator
•• Can make adjustments based on degree of risk aversionCan make adjustments based on degree of risk aversion
Negotiating New AgreementsNegotiating New Agreements
•• Check state lawCheck state law
•• Review existing agreements to determine timing and process for Review existing agreements to determine timing and process for terminationtermination
•• Is agreement standard pole agreement? joint use? joint Is agreement standard pole agreement? joint use? joint ownership? Combination? ownership? Combination?
•• Develop draftDevelop draft
•• Provide notice of termination and desire to negotiate new Provide notice of termination and desire to negotiate new agreementagreement
•• Negotiate individually vs. ordinance or ruleNegotiate individually vs. ordinance or rule
Privacy, Law Enforcement, and Property Rights LawsPrivacy, Law Enforcement, and Property Rights LawsSelected Federal LawsSelected Federal Laws
1. Communications Act1. Communications Act2. Electronic Communications Privacy Act2. Electronic Communications Privacy Act
-- Wiretap Act, Stored Communications Act, Pen Register ActWiretap Act, Stored Communications Act, Pen Register Act3. Foreign Intelligence Surveillance Act3. Foreign Intelligence Surveillance Act4. 4. Communications Assistance for Law Enforcement ActCommunications Assistance for Law Enforcement Act5. USA Patriot Act5. USA Patriot Act6. Cable Communications Policy Act6. Cable Communications Policy Act7. ECPA: Stored Communication Act 7. ECPA: Stored Communication Act ““Basic Subscriber InformationBasic Subscriber Information””88. . Telecommunications Act and CPNITelecommunications Act and CPNI9. Children9. Children’’s Online Privacy Protection Acts Online Privacy Protection Act
10. Child Protection and Sexual Predator Act10. Child Protection and Sexual Predator Act11.11. Digital Millennium Copyright ActDigital Millennium Copyright Act12.12. Communications Decency ActCommunications Decency Act13. Video Privacy Protection Act13. Video Privacy Protection Act14. Fair Credit Reporting Act14. Fair Credit Reporting Act15. 15. GrammGramm--LeachLeach--Bliley Financial Modernization ActBliley Financial Modernization Act16. Privacy Act 16. Privacy Act 17. Freedom of Information Act17. Freedom of Information Act118. Health Insurance Portability and Accountability Act8. Health Insurance Portability and Accountability Act
State Counterparts and other enactmentsState Counterparts and other enactments
Communications Assistance to Law Communications Assistance to Law Enforcement Act of 1994Enforcement Act of 1994
When law enforcement agencies make When law enforcement agencies make lawful requests, lawful requests, entities subject to CALEA must provide assistance inentities subject to CALEA must provide assistance in::
•• expeditiously expeditiously isolatingisolating and enabling the government to and enabling the government to interceptintercept all wire or electronic communications to, or from, all wire or electronic communications to, or from, a subscriber, to the a subscriber, to the exclusion of other communicationsexclusion of other communications;;
•• accessing accessing callcall--identifying informationidentifying information reasonably available reasonably available to the carrier, before, during or after transmission of a wire to the carrier, before, during or after transmission of a wire or electronic communication and in a manner that allows it or electronic communication and in a manner that allows it to be associated with the relevant communications;to be associated with the relevant communications;
•• delivering intercepted communications and calldelivering intercepted communications and call--identifying identifying information in a information in a formatformat that may be transmitted to a location that may be transmitted to a location other than the premises of the carrier;other than the premises of the carrier;
•• and in a manner that and in a manner that protects privacy and securityprotects privacy and security of comof com--municationsmunications not authorized to be intercepted, and informnot authorized to be intercepted, and inform--ationation regarding regarding the fact of the surveillancethe fact of the surveillance. .
CALEA (continued)CALEA (continued)
•• Compliance Deadline: May 14, 2007Compliance Deadline: May 14, 2007
•• Fines: up to $10,000/violation/dayFines: up to $10,000/violation/day
•• Applies to all facilitiesApplies to all facilities--based providers of (1) Internet based providers of (1) Internet access or (2) access or (2) ““interconnected VoIP,interconnected VoIP,”” via any technology, via any technology, and includes and includes BOTHBOTH common common ANDAND nonnon--common carriers common carriers (via (via ““substantial replacement provision,substantial replacement provision,”” Sec. 102(8)(B)(ii))Sec. 102(8)(B)(ii))
•• NoNo exceptions per se for small providers, wholesale exceptions per se for small providers, wholesale providers, free vs. fee, lack of knowledge of, or access providers, free vs. fee, lack of knowledge of, or access to, customer information, etc.to, customer information, etc.
•• Very limited exemptions (details follow): (1) Very limited exemptions (details follow): (1) ““information information service;service;”” (2) private networks; and (3) interconnection(2) private networks; and (3) interconnection
CALEA (continued)CALEA (continued)
““Information serviceInformation service”” exemptionexemption::
•• Virtually same definition as in Communications Act, but Virtually same definition as in Communications Act, but narrower FCC interpretation upheld in narrower FCC interpretation upheld in American Council on American Council on Education v. FCC, Education v. FCC, 451 F.3d 226 (D.C. Cir. 2006)451 F.3d 226 (D.C. Cir. 2006)
•• Exemption covers only information services that areExemption covers only information services that are not not integrated with transmission servicesintegrated with transmission services; i.e., only services ; i.e., only services such as esuch as e--mail storage functions, webmail storage functions, web--hosting, DNS lookup hosting, DNS lookup services are exemptservices are exempt
•• ““It is only the It is only the ‘‘switching and transmissionswitching and transmission’’ component of [the component of [the facilitiesfacilities--based broadband] service that is subject to CALEAbased broadband] service that is subject to CALEA””First Report and Order, First Report and Order, ¶¶1313..
CALEA (continued)CALEA (continued)
““Private NetworkPrivate Network”” Exemption:Exemption:
•• Exemption applies only to networks that enable a specific Exemption applies only to networks that enable a specific class of members class of members ““to communicate with one another and/or to communicate with one another and/or retrieve information from shared data libraries not available retrieve information from shared data libraries not available to the general publicto the general public”” See Amer. Council on See Amer. Council on EducEduc. v. FCC . v. FCC
•• ““To the extentTo the extent……that these private networks are that these private networks are interconintercon--nectednected with a public network, either the [public voice with a public network, either the [public voice network] or the Internet, providers of network] or the Internet, providers of the facilities that the facilities that support the connection of the private network to a public support the connection of the private network to a public network are subject to CALEAnetwork are subject to CALEA…”…” First R&O, First R&O, n.100.n.100.
•• CALEA cannot be applied to internal portions of private CALEA cannot be applied to internal portions of private networksnetworks
CALEA (continued)CALEA (continued)
““InterconnectionInterconnection”” Exemption:Exemption:
•• CALEA exempts CALEA exempts ““equipment, facilities, or services that equipment, facilities, or services that support the transport or switching of communications ... support the transport or switching of communications ... for the for the sole sole purpose of interconnecting purpose of interconnecting telecommunitelecommuni--cationscations carrierscarriers”” Section 103(b)(2)(B)Section 103(b)(2)(B)
•• Key question: Is there a Key question: Is there a ““telecommunications carriertelecommunications carrier””on both sides of your transmission service?on both sides of your transmission service?
•• Presumably, Presumably, ““telecommunications carriertelecommunications carrier”” defined broadlydefined broadly
CALEA (continued)CALEA (continued)
•• Compliance Strategies:Compliance Strategies:•• ““[[U]nderU]nder section 103, a telecommunications carrier is section 103, a telecommunications carrier is
entitled to implement whatever solution it believes best entitled to implement whatever solution it believes best suits its network needs.suits its network needs.”” SecondSecond ReptRept and Order, and Order, ¶¶ 4040
•• Industry standards and statutory Industry standards and statutory ““safe harborssafe harbors””•• OptionsOptions
•• In house (e.g., Bristol)In house (e.g., Bristol)•• ““Trusted third partyTrusted third party”” (e.g., commercial, NoaNet)(e.g., commercial, NoaNet)•• ““Just in timeJust in time””
•• Section 109 petition for infeasibility exemption Section 109 petition for infeasibility exemption •• Advice: (1) Get into compliance ASAP, (2) file System Advice: (1) Get into compliance ASAP, (2) file System
Security and Integrity Plan with FCC, (3) set up link to Security and Integrity Plan with FCC, (3) set up link to privacy counsel to enable prompt responses to requests privacy counsel to enable prompt responses to requests from Law Enforcementfrom Law Enforcement
Customer Proprietary Network InformationCustomer Proprietary Network Information
•• Section 222 of Telecom Act imposed the following general Section 222 of Telecom Act imposed the following general obligations on telecommunications carriers:obligations on telecommunications carriers:
““Except as required by law or with approval of the customer Except as required by law or with approval of the customer [a telecom carrier] shall only use, disclose, or permit access [a telecom carrier] shall only use, disclose, or permit access to individually identifiable [CPNI] in its provision of (A) the to individually identifiable [CPNI] in its provision of (A) the telecommunications service from which such information telecommunications service from which such information is derived, or (B) services necessary to, or used in, the is derived, or (B) services necessary to, or used in, the provision of such telecommunications service . . .provision of such telecommunications service . . .””
•• FCC: FCC: ““Practically speaking, CPNI includes personal information Practically speaking, CPNI includes personal information such as the phone numbers called by a consumer, the length such as the phone numbers called by a consumer, the length of phone calls, and services purchased by the consumer, such of phone calls, and services purchased by the consumer, such as call waiting. Congress accorded CPNI as call waiting. Congress accorded CPNI –– which includes which includes personal, individually identifiable information personal, individually identifiable information –– the greatest the greatest level of protection.level of protection.”” Third CPNI OrderThird CPNI Order..
CPNI (Continued)CPNI (Continued)
•• In 1998, FCC issued first set of CPNI rules requiring In 1998, FCC issued first set of CPNI rules requiring customers to customers to ““opt inopt in”” before carriers could share or even before carriers could share or even use information for their own marketing; carriers successuse information for their own marketing; carriers success--fully challenged rules under First Amendmentfully challenged rules under First Amendment
•• In 2002, FCC revised rules to allow carriers to share In 2002, FCC revised rules to allow carriers to share CPNI with affiliates and third parties providing services CPNI with affiliates and third parties providing services to customers unless they to customers unless they ““opt outopt out””; for other sharing, ; for other sharing, affirmative affirmative ““opt inopt in”” necessarynecessary
•• In April 2007, FCC revised rules again in response to In April 2007, FCC revised rules again in response to ““pretextingpretexting””
CPNI (continued)CPNI (continued)
•• April 2007 rules tightened CPNI protections:April 2007 rules tightened CPNI protections:
•• Customer authentication requirementsCustomer authentication requirements
•• Duty to notify of account changes, unauthorized Duty to notify of account changes, unauthorized disclosuresdisclosures
•• OptOpt--in for disclosures to independent contractors in for disclosures to independent contractors and joint venture partnersand joint venture partners
•• Annual CPNI certificationsAnnual CPNI certifications
•• Extended CPNI obligations to Interconnected VoIPExtended CPNI obligations to Interconnected VoIP
•• In enforcement cases, will presume unauthorized In enforcement cases, will presume unauthorized disclosures caused by lack of adequate diligencedisclosures caused by lack of adequate diligence
Digital Millennium Copyright ActDigital Millennium Copyright Act
•• ISPs sometimes get caught between conflicting claims ISPs sometimes get caught between conflicting claims of their customers and copyright holdersof their customers and copyright holders
•• DMCA establishes immunities and safe harbors for DMCA establishes immunities and safe harbors for ISPs based on their level of involvement (pure conduit, ISPs based on their level of involvement (pure conduit, caching, hosting)caching, hosting)
•• For hosting, must post and comply with For hosting, must post and comply with ““takedown policytakedown policy””and register with Copyright Officeand register with Copyright Office
•• If follow procedures carefully, immune to suits by either If follow procedures carefully, immune to suits by either customer (e.g., breach of contract) or copyright holder customer (e.g., breach of contract) or copyright holder (e.g., contributory infringement)(e.g., contributory infringement)
State Privacy and Open Records LawsState Privacy and Open Records Laws
•• Many states mirror federal lawsMany states mirror federal laws
•• Wide variety of open records modelsWide variety of open records models
•• Most states have presumption of openness and Most states have presumption of openness and accessibility for accessibility for ““public recordspublic records””
•• What public entities and in what capacities are What public entities and in what capacities are subject to such laws?subject to such laws?•• In some states, government entities acting in In some states, government entities acting in
purely proprietary capacity are purely proprietary capacity are notnot subjectsubject•• ““State agencyState agency”” / / ““political subdivisionpolitical subdivision””•• Receipt of govt. fundsReceipt of govt. funds
State Laws (Continued)State Laws (Continued)
•• What material is subject to open records lawsWhat material is subject to open records laws::
•• ““RecordRecord”” generally construed broadlygenerally construed broadly
•• Electronic writingsElectronic writings
•• In some states, limited to records of deliberationIn some states, limited to records of deliberation
•• ““DraftDraft”” work product may or may not be subjectwork product may or may not be subject
•• In others, mere possession by a qualifying entityIn others, mere possession by a qualifying entity
•• ““Public recordPublic record”” probably does not include material probably does not include material produced produced byby customers of municipally owned service customers of municipally owned service provider (e.g., subscriber email)provider (e.g., subscriber email)
State Laws (continued)State Laws (continued)
•• Common ExceptionsCommon Exceptions•• Proprietary functionProprietary function
•• Competitive info, including customer databases, Competitive info, including customer databases, business plansbusiness plans
•• Certain RFP responses, preCertain RFP responses, pre--awardaward
•• Critical infrastructure / CEIICritical infrastructure / CEII
•• Trade secretsTrade secrets
•• Security informationSecurity information
•• Personal privacyPersonal privacy
•• Traditional privileges (attorney/client, etc)Traditional privileges (attorney/client, etc)
•• NonNon--citizen requestscitizen requests
Universal Service IssuesUniversal Service Issues
•• All providers of interstate All providers of interstate ““telecommunication servicetelecommunication service”” must must file reports (Forms 499A, 499Q) and contribute if owe more file reports (Forms 499A, 499Q) and contribute if owe more than than de de minimisminimis amountamount ($10,000/year)($10,000/year)
•• Providers of interstate Providers of interstate ““telecommunicationstelecommunications”” must file reports must file reports and contribute if owe more than and contribute if owe more than de de minimisminimis amount amount ($10,000/year)($10,000/year)
•• Contributions based on Contributions based on ““end user revenues,end user revenues,”” which which includes retail customers and wholesalers (e.g., ISPs, includes retail customers and wholesalers (e.g., ISPs, cable companies) that do not make contributionscable companies) that do not make contributions
•• Contribution factor about 11%, so obligations arise at Contribution factor about 11%, so obligations arise at about $90,000 in about $90,000 in ““end user revenuesend user revenues””
•• Stiff new FCC interest and penalty provisions for nonStiff new FCC interest and penalty provisions for non--filing, filing, nonnon--payments, or underpaymentspayments, or underpayments
Other Issues?Other Issues?