Telecom Act rewrite would bring changes to local franchising

Jim Fahey
Director of Government Affairs
APWA Washington Office

For more than a year, passing a rewrite of the landmark 1996 Telecommunications Act has been a big priority for many lawmakers in Congress, especially for Sen. Ted Stevens (R-AK) and Rep. Joe Barton (R-TX). Stevens is chairman of the Senate Commerce, Science and Transportation Committee. Barton (R-TX) is chairman of the House Energy and Commerce Committee. Both men are lead sponsors of two separate bills which aim to update the nation's telecommunications laws to address everything from video over Internet service to shoring up the Universal Service Fund.

Barton's bill, known as the Communications, Opportunity, Promotion and Enhancement Act of 2006, COPE (HR 5252), would allow telecommunications companies to obtain a national franchise to provide video services. Local government organizations and APWA oppose the legislation because it would strip local governments of their longstanding authority to franchise the use of their rights-of-way for video/cable services and would give that authority to the Federal Communications Commission (FCC) in Washington, D.C., including arbitrating rights-of-way disputes. The bill, which first emerged as draft legislation last fall, was passed by the full House of Representatives on June 8 by a vote of 321-101.

Stevens' bill, the Communications, Consumer's Choice and Broadband Deployment Act of 2006 (also HR 5252), is broader than Barton's bill. Like Barton's bill, it includes changes to the video franchising process but also includes measures to strengthen the Universal Service Fund, which helps underwrite phone service in low-income, rural, insular and high-cost areas. Unlike Barton's bill, however, Stevens' bill would not nationalize the video franchising process but would retain the basic local franchising framework and require localities to act within certain timeframes.

Stevens' bill was approved by the Senate Commerce Committee on June 28 but did not reach the Senate floor before the August Congressional Recess. It was subject to several revisions before the committee considered the bill, some of them prompted by local government concerns, especially with regard to franchising provisions.

The revisions resulted in several important improvements, including: preserving local control and authority to manage public rights-of-way; ensuring that the courts, rather than the FCC, have the jurisdiction over rights-of-way disputes; and clarifying the timeframe from 75 days to 90 days for action on video franchises by local governments.

Still, significant concerns remain and state and local government organizations oppose the legislation. Local governments are particularly concerned with tax-related provisions which were added to the bill during Committee debate. As amended, Stevens' bill would extend indefinitely the Internet Tax Freedom Act, which prohibits local governments from levying taxes or fees on Internet access, and it would place a moratorium on all new cell phone-specific taxes.

Stevens' bill awaits action by the full Senate but is not expected to be considered until September at the earliest. Controversial issues leave the bill's future unclear as Senate leadership insists that the bill must have the 60 votes needed to avoid a filibuster, a vote count the bill lacked before Congress recessed in August.

Battles in the Senate over "net-neutrality" (the issue of how Internet traffic is managed), the Universal Service Fund, the absence of build-out provisions to ensure broad access to video services and tax issues could prevent the bill from attaining a filibuster-proof vote.

Given the complexity of the issues involved, the workload facing Congress when it returns from the August Recess and the compressed legislative calendar of an election year, the outlook for enactment of legislation remains uncertain. If Stevens' bill is able to pass the Senate, both his and Barton's bill would still have to clear what could be a difficult conference to resolve the many differences between them. Barton's narrower bill does not contain companion language on many issues in Stevens' bill.

Barton indicated before the August Recess that he expected Congress to pass a bill, albeit a bill narrower than the Senate bill. He also conceded that the outlook was far from clear and that it might take the anticipated lame-duck session to get it done.

Preserving local control is one of APWA's top advocacy priorities, and as Congress considers this rewrite, APWA's message to policy-makers has been clear: decisions regarding management and control of local public rights-of-way belong to local governments. APWA will continue to deliver that message through every stage of the legislative process.

Jim Fahey can be reached at (202) 218-6730 or jfahey@apwa.net.