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Federal Regulations
DOCUMENTS
Federal Communications Commission Second Further Notice of Proposed Rulemaking (September 25, 2018)
Third Report and Order (August 1, 2019)
Commissioner statements supporting the order:
Opposing the order:
6th Circuit Court of Appeals holds that in-kind services can be included in the 5% cap on local franchising video service provider fees
June 7, 2021. On May 26, the Sixth Circuit Court of Appeals largely upheld the 2019 FCC Third Report and Order that after 35 years reinterpreted the Cable Act to hold that the value of in-kind services provided by cable companies as a result of a local franchise agreement or a state statute are to be added to the franchise fee assessed by a municipality and together total no more than 5% of company gross revenues. MORE
6th Circuit Court of Appeals decides the 5% fee cap can include in-kind “extractions” and rules Eugene, Oregon cannot assess a broadband fee specifically on a cable television provider.
May 26, 2021. The decision in the case of City of Eugene, OR v. FCC has been released today. Here is a link to the decision. Please watch this space for more analysis soon.
Court denies FCC request to delay oral arguments in case challenging its August 2019 Third Report and Order
March 22, 2021. The case of City of Eugene, OR v. FCC will go on as scheduled on April 15, despite the fact that the FCC asked to put the case “in abeyance for 120 days…in light of recent changes in the membership and leadership of the Commission.” The NCTA, the cable TV lobby group and an intervenor in the case, objected to the FCC’s motion saying it would be harmed by the delay. The court agreed with the NCTA. MORE
FCC denies cable franchise order stay request but provides implementation guidance
November 12, 2019
By Atty. Gerard Lederer, Best, Best & Krieger
FCC votes 3 - 2 to approve Third Report and Order
At its August 1, 2019 meeting, the Federal Communications Commission voted along party lines 3 - 2 to approve the Third Report and Order, claiming it will help expand broadband infrastructure, though no such requirement was placed on telecom companies using the right-of-way.
The final version of the Report and Order (see sidebar for the R & O and other related documents) will have some negative effect in Wisconsin since the Report & Order considers “PEG Transport” and maintenance of transport lines to be PEG operating expenses that can be deducted from video service provider fees. The FCC affirmed, however, that video service providers may be required to fund PEG capital expenses and these expenses cannot be deducted from video service provider fees. Currently, Wisconsin does not take much advantage of its ability to charge video service providers for capital expenses related to PEG.
The Third Report & Order exempts the following from the 5% franchise fee and in-kind services cap:
PEG capital expenses
PEG transport facilities (but not maintenance or operating costs)
Installation of transport facilities to transport PEG programming to a headend (no limit set on the number of these allowed per community)
PEG channel capacity and related costs (FOR NOW…)
Build-out provisions
Customer service standards
In its Third Report and Order, the FCC chose not to make a decision on whether PEG access channels (Section 44) have an “operating cost” component that could be charged against the franchise fee cap. The FCC indicated that this might be revisited within a year.
WCM believes it is important to push for changes in state legislation, so that we take advantage of what we CAN do, while lessening the effect of charges that we may start getting in the future from video service providers.
“In an era of media globalization and consolidation, PEG access stations continue to give viewers critical information about their communities and offer and important platform for local voices. They catalyze civic engagement and they provide invaluable education services. As the Commission proceeds on this issue, we urge you to consider the potential impact on PEG stations.”
