practicial applications session ii – 10:30 am – 12:00 pm presented by: eric anderson/kelly ward...

PRACTICIAL APPLICATIONS

Session II – 10:30 am – 12:00 pm

Presented By: Eric Anderson/Kelly WardSr. Assistant City AttorneysCity of Scottsdale

Friday, May 29, 2015

PRACTICAL APPLICATIONS

• A. Code v. Contract [tab 1]

o practical considerations of controlling your ROW through the City Code versus controlling through licensing or other contracts


• C. Cox v. Google (and others)• Is “cable” televisión going the way of Ma Bell?

*******“In the face of rising prices, poor customer service and ever more frequent blackouts over fee disputes, many consumers yearn for a way out of the grip of their cable TV subscription. Though companies such as Google, Intel, Sony and Apple are all working on Internet-delivery TV platforms, none have yet secured the content deals needed to launch a credible service. And while industry analysts point out that the number of cord cutters has yet to reach the critical mass needed to force changes to the cable TV business model, the fact is that today there are viable TV options to the triple digit cable bill.”

-- Forbes Magazine [tab 2]


• What the heck is a “video service”?

o (42) Video services shall mean the provision of video programming without regard to delivery technology, including internet protocol technology, whether provided as part of a tier, on demand, or a per channel basis. This definition includes cable services provided by a cable operator using a cable television system, but does not include any video programming provided by a commercial mobile service provider as defined in 47 U.S.C. § 332(d), or any video programming provided solely as part of and via a service that enables users to access content, information, electronic mail, messaging or other services offered over the public internet or internet access service.

Tempe City Code, § 10-1


• Internet TV Providers want access to your ROW, but they don’t want to be a “cable” company.o may not be a money thingo might not want the federal regulation associated with cable. [tab 3]

• Practice Tips: You may be the last to know that

Provider X is coming to your town. [tab 4]

• Who do you want to be in bed with? [tab 4ª]


• C. The Wireless/Internet Revolutiono What does the future hold?

• One thing for certain: Technology will change faster than your City/Town.

• Open Internet Order – the changing landscape [tab 5]o Old Rule: Brand X – FCC flip-flopped

• 1. internet services now reclassified as telecommunications services (common carrier)o Subject to “Title II” of the FTA

• 2. FCC will forebear from regulation in many áreaso brings § 253 into play for internet service providers


• Major Provisions of Title II that the Order WILL APPLY:o The proposed Order applies “core” provisions of Title II: Sections 201

and 202 (e.g., no unjust or unreasonable practices or discrimination)o Ensures fair access to poles and conduits

• Major Provisions Subject to Forbearance:o Rate regulation:o Universal Service Contributions:o Broadband service will remain exempt from state and local taxation

under the Internet Tax Freedom Act.


3. Net Neutrality

o Bright Line Rules: The first three rules ban practices that are known to harm the Open Internet:

o No Blocking: broadband providers may not block access to legal content, applications, services, or non-harmful devices.

o No Throttling: broadband providers may not impair or degrade lawful Internet traffic on the basis of content, applications, services, or non-harmful devices.

o No Paid Prioritization: broadband providers may not favor some lawful Internet traffic over other lawful traffic in exchange for consideration of any kind—in other words, no “fast lanes.” This rule also bans ISPs from prioritizing content and services of their affiliates

FCC News Release, FCC ADOPTS STRONG, SUSTAINABLE RULES TO PROTECT THE OPEN INTERNET, February 26, 2015


• “One size fits all” fees/regulatory approach?

o 1. One-Time Permitting/Plan Review Fees

o 2. Recurring Fees:• A. Percentage Based on Revenue (Smells like a tax?)

o difficult to audito wiggle room for the providerso are you non-discriminatory?o Can your city/town keep up with technology?

• B. Facilities Based Chargeso per unit/per lineal footo should size matter?


Example contract provision [tab 6]:

o 1.7 Permitted Uses. Licensee shall use the Right-of-way solely for the Permitted Uses and shall conduct no other activity at or from the Right-of-way. The Permitted Uses are limited to:

• 1.7.1 Providing Cable Service within the Boundaries. Licensee may also provide broadband internet access and telecommunications services over the cable system to the extent permitted by Federal and state law.

• 1.8.2 The following items are specifically prohibited:• 1.8.2.1 Business offices, repair facilities and storage areas.• 1.8.2.2 Switching stations and other equipment that does not need to be• located in the Right-of-way in order for the Cable System to operate

properly.• 1.8.2.3 Antennas, radio transmitters and supporting equipment, except

for• portable equipment used by licensee's service crews to communicate

with Licensee.


• Does the FCC want your help? (Probably Not) [tab 7]o FCC Broadband Initiativeso The President and Congress gave the Federal Communications Commission

(FCC) several jobs to complete in the effort to make broadband or high speed access to the Internet, available to all Americans. This effort is based on the belief that every American needs to have access to broadband to have the doors of economic and social opportunity open to them. The effort required the FCC to:• Develop a forward-looking national broadband plan to ensure that all

Americans have access to broadband capability.• Contribute to efforts of the Departments of Commerce and Agriculture to

award $7.2 billion in grants, loans, and loan guarantees to hasten roll-out of the facilities needed to provide broadband and educate consumers to use this infrastructure.

• Collect and report far more detailed and comprehensive information on the status of broadband deployment, adoption, and use, including how broadband service in the US compares to broadband service in other countries.

https://www.fcc.gov/guides/recent-fcc-broadband-initiatives


• D. How does my council legally deny a wireless communication facility application?

o (iii) Any decision by a State or local government or instrumentality thereof to deny a request to place, construct, or modify personal wireless service facilities shall be in writing and supported by substantial evidence contained in a written record.

47 U.S.C.A. § 332(c)(7)


• 9th Circuits Sprint Telephony Decision

o Changed the landscape of telecommunications litigation; shifted momentum from providers

o Significantly raised the level of proof for a facial challenge to an ordinance by a provider

o turned on interpretation of “may prohibit” in § 253(a); earlier decisions had interpreted “may prohibit” as meaning that all the provider had to do to challenge an ordinance was to show that the ordinance might be applied in an illegal manner rather than traditional “facial” challenge approach where plaintiff had to show that ordinance could not be applied in a legal manner

o practical effect is to limit wireless providers mainly to “as applied” challenges


• 2. If the zoning decision is supported under local/state law, still may be invalidated under FTA if there is effective prohibition

o telecom provider then must demonstrate “significant gap” in coverage MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715, 731 -734 (9th Cir. 2005)

Note: In MetroPCS, 9th Cir. rejected “one provider” approach and held that must analyze each individual carrier separately for significant gap.

o telecom provider must also pass “least intrusive means,” i.e., inquired into feasibility of alternative locations and attempted to fill the gap in manner which is least intrusive on values that zoning denial seeks to preserve (Metro PCS)


• 3. Burden shifts back to local authority to show alternative, more preferable locations (get out your checkbook!)

o City must present evidence of actual availability of alternative site, not just speculation

Note: Sprint v. Palo Verde Estates showed 9th Circuit willingness to accept “aesthetic concerns” as sufficient basis for the City’s initial denial of a site

•


• T-Mobile S., LLC v. City of Roswell, Ga., 135 S. Ct. 808, 190 L. Ed. 2d 679 (2015)

Synopsiso Background: Telecommunications service provider brought action

against city, challenging its denial of provider's application to build a cell phone tower as violative of Telecommunications Act.

o Holdings: The Supreme Court, Justice Sotomayor, held that:• 1 - a locality must provide reasons when it denies a siting

application;• 2 - a locality's reasons for denying a siting application need not

appear in same writing that conveys locality's denial, abrogating Southwestern Bell Mobile Systems, Inc. v. Todd, 244 F.3d 51, New Par v. City of Saginaw, 301 F.3d 390, and MetroPCS, Inc. v. City and County of San Francisco, 400 F.3d 715; and

• 3 - city did not comply with Telecommunications Act's requirement that its decision be in writing and supported by substantial evidence.


• RECOMMENDATIONS:o 1. Review your ordinance(s) to make sure that your governing body has the

power under local zoning ordinance to deny proposed WCF locations (i.e., residential zoning, historic areas, Undergrounding areas)

o 2. Preserve flexibility; allow governing body to make determinations regarding significant gaps in coverage, least intrusive means;

o 3. Shift cost burden to provider? (Some codes require applicant to pay cost for City to obtain RF analysis for significant gap questions)

o 4. Usage based fees; correlate charges with use of ROW rather than gross revenue

o 5. Consider limiting scope of license to scope of service to call the bluff.• i.e., If telecom company says they are within definition of § 9-581 et seq.;

include limitation in the license which says they can only provide such services or they will pay.

o 6. Go Stealth!!!!

[tab 8]

practicial applications session ii – 10:30 am – 12:00 pm presented by: eric anderson/kelly ward...

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