Saturday, February 7, 2009

IN MY OPINION: SURVIVING LANGUAGE MIGRATION FROM TELECOM TO BROADBAND POLICY

IN MY OPINION: SURVIVING LANGUAGE MIGRATION FROM TELECOM TO BROADBAND POLICY

By Chuck Sherwood

For those of us who have been around since the beginning or so it seems, I keep wondering when we, on the public interest side, will finally develop strategies that move us from always being on the defensive to going on the offensive. It all started in the mid ‘70s, the glory days, where the 1979 Mid West Video decision by the Supreme Court forced the cable industry into to the hand-to-hand combat of the ‘80s Cable Wars. That was the last win for the public interest as we witnessed the Cableco[1] manipulations of Congress in the ’84 and ’92 Acts[2] which culminated with the passage of the “grand compromise” better known as the Telecommunications Policy Act of 1996. In the past twelve years, we have been rolled by telecom “corporate interests,” their highly paid lobbyists and lawyers as well as their Astroturf [3] groups and so called academic think tanks. We have been rolled over in Congress, in the FCC, in the courts and in one state legislature after another. The most recent example is in the 6th Circuit Appeals Court upholding of the FCC’s March 5, 2007 Cable Franchise Order giving Telcos franchises in 90 days.


There are lots of reasons why the industry has been so successful and it’s more than their use of money to buy political influence. Telco’s understand that it’s all about the language and how you use words, whether as part of a public relations pitch which some would call propaganda campaigns or in legal drafts. Waged in the media which telecom conglomerates also control or as part of legal briefs where words are carefully parsed, we find distorted definitions and meanings designed to manage judges decisions, which, these days, more often support corporate over public interests.

Let me give you a couple of examples of the industry’s reasoning processes that justify recent legislative decisions—

(1) Preempting Local Franchising Authorities (LFAs) with either national or state franchising will foster competition which will lower subscriber rates and create jobs,

(2) LFAs are “barriers to entry”. LFAs make “unreasonable build-out requirements and demands for PEG Access” and finally

(3) how about at&t’s claim that they do not need a franchise since their U-verse service is not a Title VI cable service but an “IP service”, thus subject to Title I, Information or ISP classification.

As has now been documented, by both NATOA and Alliance for Community Media Surveys to assess the impact of state franchising, not only have these claims proven not to be true in any state that passed legislation preempting local franchising processes, but there is still no consensus on whether carrying video programs on twisted pair phone lines and juiced-up DSL is an “Internet Protocol” or “Cable Service”.

Keep in mind that it’s not just the usual corporate opponents of municipalities, counties, states and Public, Education and Government (PEG) Access organizations who frame issues in favorable, pro-industry language. Sometime our allies in the consumer, civic and media reform arenas also undermine LFAs’ authority—not with malice, but from ignorance of telecom history and the land-use laws that govern the granting of franchises. The key to ensuring deployment of next generation, last mile, telecom infrastructure is the ability of local governments to manage Public Rights of Way (PROW) [4] for the benefit of citizens. We see property taxes rise for public communications services (for education, police, fire, emergency management, etc.) as the telecom industry orchestrates legal exemptions from paying its fair share for use of public land. Year after year we watch the original sources of franchise revenues designed to protect the public’s communications interests evaporate due to the careless use of language by both protagonists as well as antagonists.

For example, any talk of migration from analog to digital or IP services is a word game that plays into the hands of the industry. As I recently heard in a discussion on National Public Radio, one of the media reform folks claimed that the Internet is a “publishing” tool and not a “communications network” for the delivery of voice, video and data services. Once again, this activates the language game since using the term “publishing” triggers the old cable companies’ claim in the 80’s, that they were “electronic publishers” with the same First Amendment right as newspapers. Obviously, newspapers aren’t regulated—so if cable is a newspaper—voila, government can’t collect a fee for use of PROW. The cable industry actually claimed that it’s infrastructure was no more than a newspaper stand using the sidewalk for free.

Many people think that American municipalities are new to the management of Public Rights of Way (PROW) when, in fact, local governments have a fiduciary responsibility to manage public land for the benefit of citizens and have been doing so for years. My recollection is that this responsibility goes back to English Common Law and has been part of American Common Law practice since the founding of the Nation. It’s also important to note that since the early ‘80s, municipalities managed on-going financial crises with the down turn in the national economy and the launching of anti-tax campaigns. Local governments consistently needed to figure out how to deliver services with constantly shrinking revenues because they are required to operate within budget. Unlike the private sector, local governments can’t wily, nilly raise rates for essential services nor, like the federal government, can they operate with trillions of dollars in deficits.

Let’s not forget what happened after the passage of the ’96 Telecom Act, which at the request of the industry classified cable modem or Internet (ISP) services as a Title VI, Cable Service. As soon as the City of Portland attempted, in its transfer of ownership proceedings, to require the same open access provisions for unaffiliated ISP services that had been imposed by the Act on Telco’s for use of their network by Competitive Local Exchange Carriers, Cablecos began the process of changing the cable modem classification from Title VI, Cable Service to Title I, Information Service. As a result, LFAs didn’t just the lose regulatory authority but it also lost some $500,000,000 in new franchise fees that were just beginning to be collected from the provision of ISP services. Once again the FCC, the Appeals Court and then Supreme Court, in the Brand X decision, upheld corporate over community interests.

Since LFAs have a fiduciary responsibility to citizens, how can they continue to permit providers of voice, video and data services to use PROW without requiring fees for that use, regardless of the classification of the service provided—Title I, Information or ISP Services, Title II, Telecommunications Services, or Title VI, Cable Services. It makes no difference how services are classified, they’re still carried on infrastructure located on public land and so must pay for that use. As an engineering friend told me, telecom infrastructure is neutral; it carries whatever you put on it. Telecom owners seeking to snivel out of legal agreements invent service classifications as a basis for land lease compensation.

Unfortunately, the easy explanation for this regulatory mess has to do with the history of development and delivery of utility and broadcast services—from telegraph to electric to telephone to radio to television to cable, satellite and cell phones and then finally to so-called broadband services of voice, video and data—which many refer to as the Internet. All of these utility and broadcast services use either the PROW or the Public Spectrum. Each of these services were given special consideration to help create viable business entities and to foster competition. Each of these services, provided by different companies, used delivery networks with differing technologies, capabilities and limitations. Regulations also considered which services were essential and thus subject to different regulation regimes and whether they fell under the purview of local, county, state or national government. Then there was the consideration of which service was intra-state or interstate and who had regulatory authority. In my opinion, these layers of definitions, classifications, issues and concerns create what I will call “Barriers to Common Sense”

My challenge is directed to the national associations that represent the interests of the LFA’s, their attorneys, advisers, as well as members of NATOA, and especially our sharp attorneys. Come up with a legal construct based upon the understanding that in a 21st Century Digital Broadband Universe voice, video and data services are just data bits delivered to a display device, regardless of whether they are delivered on wireline or wireless networks. Since all providers of broadband services must use either Public Rights of Way or Public Spectrum as pathways of delivery then all providers must pay fees to LFA’s. In the case of wireline services all providers would pay for the use of the PROW and thus make the LFAs whole as the managers of public lands. LFA’s then assume the fiduciary responsibility for managing and dispersing, for the community’s common good, revenues generated from public right of way use. In the case of wireless providers using Public Spectrum to deliver broadband services, fees would be paid to the LFA based upon subscribers’ zip codes, which conform to the geographic boundaries of LFAs. If you’re in the broadband delivery business, wired or wireless—you pay local franchising authorities—it’s the only fair way to make sure the public is compensated for use of public assets.

Now, as we head toward the 2008 Presidential election, facing the latest economic downturn caused by the credit, subprime mortgage and oil prices crises, it’s estimated that state and local governments around the country are going to lay off some 45,000+ employees. Can you imagine what a difference there would be on state, county and local government budgets if the public was being fairly compensated with the billions of dollars owed them by the telecom industry for Internet service franchise fees? We’ve been playing this negative-sum telecom word game for thirty years. How much longer can we expect the public to subsidize the telecom industry bit by bit?

Published in the NATOA Journal, Fall 2008 issue.
____________________________

[1] Cableco refers to the cable companies / industry

[2] The Cable Communications Policy Act of 1984 and the Cable Consumer Protection and Competition Act of 1992.

[3] Astroturf or Astroturfing in American English is a neologism for formal public relations campaigns in politics and advertising which seem to create the impression of being spontaneous, grassroots behavior, hence the reference to the artificial grass Astro Turf.

[4] Public right of way (PROW) is the 9 feet of land on each side of every road in the U.S. reserved as utility corridors, which are purchased and maintained with tax dollars. Arguably, PROW is the most valuable real estate in the nation, granting private companies access to the marketplace in every town where a franchise is awarded. Franchise fees, PEG access and Institutional Network requirements codified the most fair and consistent form of compensation so communities benefit along with the franchisee from the success and growth of new technology and evolving innovation.

Letter to the Editor

Worcester Telegram & Gazette

As I See It

March 7, 2007

This is in response to what I perceive as Verizon’s corporate propaganda “Competition for cable TV not as remote”, published March 7, written by Mat Hussey. Readers should know that Mr. Hussey worked more than eight years in the telecommunications industry, most recently for Verizon Communications before his present position at the American Legislative Exchange Council. ALEC is a corporately funded free market think tank that writes special interest legislation that only benefits it funders and not consumers or municipalities.

The present local franchise system does not discourage competition or consumer choice. This twenty-five year old system has worked very well and for many communities in eastern MA there has been competition between RCN and Comcast for some ten years. Also, throughout all municipalities in the state there are two other competitors in the form of Satellite TV providers—Dish Network and Direct TV. In many communities Verizon is the Fifth provider of Multi-Channel Video Services, as defined by the FCC.

Presently, if new competitors want to enter into a city franchise they merely have to match the incumbent license terms. This is the level and fair playing field. But it appears Verizon simply wants to avoid being subject to local franchise terms. It appears that they want to move regulatory authority as far away as possible from our local cities and towns. So, when you have a complaint about customer service, or when you are not allowed access to their high speed internet or digital phone or TV service in your low income neighborhood that has been “redlined” by Verizon, you may have to go to the FCC in Washington or to the DTE in Boston to get satisfaction. Yeah, like that’s going to happen.

Are we all supposed to believe that statewide franchising will address Worcester’s specific needs? The present Verizon proposal for telecommunication reform in this state will harm our PEG channels, leave local Institutional Networks (I-Nets), which provide towns and cities with low cost telecommunication services, to wither and die after incumbent license expire. In exchange such so-called reform, there is no guarantee of statewide competition or lower prices for the long term. As of now, Verizon has only announced plans to seek licenses in 67 of the 351 towns and cities in MA, which means they will serve only 16% of the states municipalities. So, why do they need special interest statewide licensing?

Local franchise controls are necessary. The people have a right to get something back in return for the corporate use of the Public Rights of Way. Municipalities have a fiduciary responsibility to manage the PROW to our benefit and “We the People” are entitled to receive PEG services in exchange for giving these companies use of these Rights of Way.

Verizon already has licenses and is providing video content services in 48 communities in Massachusetts. They currently comply with local franchise terms and conditions in those cities and towns. The current franchise system didn’t stop them in those places and won’t in Worcester. But as of now, there is no guarantee Verizon has an interest in providing services in Worcester since they are not currently interested in urban or rural communities but only in the “495 Donut” around Boston with Boston as the hole.

What caused the cable TV bill to “skyrocket was not local franchise fees or PEG Access, but corporate profits, increased programming costs and the need to rebuild the cable networks to compete with the Satellite providers. Can the process be quicker? Of course it can! Worcester has for over 20 years set the template. During the 2006 ascertainment process for renewal negotiations with Charter, it has become very clear what Worcester’s community needs and interest are. Cable and phone companies merely have to engage in good faith negotiation. There is no reason why these negations can not be executed in a timely manner.

For over twenty-five years, cable companies have launched increasingly profitable operations in Massachusetts and given fair compensation to municipalities for the use of the public rights of way. Should Verizon now be allowed to do any less?

Chuck Sherwood

Principal

Community Media Visioning

Debunking Verizon's Public Relations Threat in Massachusetts

April 18, 2007

Letter to the Editor

Boston Globe

In response to, “Verizon suspends push for Mass. TV franchises”, it must be pointed out that Verizon never intended to build their FiOS network beyond the 67 towns in their current Capital Expense plan. A year and a half ago, based upon their financial analysis of the areas of the highest possible return on investment, they decided not to serve the remaining 84% of the municipalities in the state. Their Suburban Donut Strategy with Boston as the Hole does nothing to position the state for the 21st Century.

Now, we have the public relations strategy of a phony threat to help move their bill on Beacon Hill. It reduces the licensing process to a fifteen day postcard application mailed into the Department of Telecommunication and Cable. There are no buildout requirements, no local needs assessments and no public hearings. This is not about our Choice but their Choice! The current process of local franchising has in fact expedited their builds and served local PEG and I-Net needs and all neighborhoods.

The Legislature and the Governor should block this bill and launch a Broadband Policy and Planning process that provides for an advanced telecommunications infrastructure that serves all of the state for community, educational and economic development.

Chuck Sherwood

Principal

Community Media Visioning

IN MY OPINION: SURVIVING LANGUAGE MIGRATION FROM TELECOM TO BROADBAND POLICY

IN MY OPINION: SURVIVING LANGUAGE MIGRATION FROM TELECOM TO BROADBAND POLICY

By Chuck Sherwood

For those of us who have been around since the beginning or so it seems, I keep wondering when we, on the public interest side, will finally develop strategies that move us from always being on the defensive to going on the offensive. It all started in the mid ‘70s, the glory days, where the 1979 Mid West Video decision by the Supreme Court forced the cable industry into to the hand-to-hand combat of the ‘80s Cable Wars. That was the last win for the public interest as we witnessed the Cableco [1] manipulations of Congress in the ’84 and ’92 Acts [2]which culminated with the passage of the “grand compromise” better known as the Telecommunications Policy Act of 1996. In the past twelve years, we have been rolled by telecom “corporate interests,” their highly paid lobbyists and lawyers as well as their Astroturf [3] groups and so called academic think tanks. We have been rolled over in Congress, in the FCC, in the courts and in one state legislature after another. The most recent example is in the 6th Circuit Appeals Court upholding of the FCC’s March 5, 2007 Cable Franchise Order giving Telcos franchises in 90 days.


There are lots of reasons why the industry has been so successful and it’s more than their use of money to buy political influence. Telco’s understand that it’s all about the language and how you use words, whether as part of a public relations pitch which some would call propaganda campaigns or in legal drafts. Waged in the media which telecom conglomerates also control or as part of legal briefs where words are carefully parsed, we find distorted definitions and meanings designed to manage judges decisions, which, these days, more often support corporate over public interests.

Let me give you a couple of examples of the industry’s reasoning processes that justify recent legislative decisions—

(1) Preempting Local Franchising Authorities (LFAs) with either national or state franchising will foster competition which will lower subscriber rates and create jobs,

(2) LFAs are “barriers to entry”. LFAs make “unreasonable build-out requirements and demands for PEG Access” and finally

(3) how about at&t’s claim that they do not need a franchise since their U-verse service is not a Title VI cable service but an “IP service”, thus subject to Title I, Information or ISP classification.

As has now been documented, by both NATOA and Alliance for Community Media Surveys to assess the impact of state franchising, not only have these claims proven not to be true in any state that passed legislation preempting local franchising processes, but there is still no consensus on whether carrying video programs on twisted pair phone lines and juiced-up DSL is an “Internet Protocol” or “Cable Service”.

Keep in mind that it’s not just the usual corporate opponents of municipalities, counties, states and Public, Education and Government (PEG) Access organizations who frame issues in favorable, pro-industry language. Sometime our allies in the consumer, civic and media reform arenas also undermine LFAs’ authority—not with malice, but from ignorance of telecom history and the land-use laws that govern the granting of franchises. The key to ensuring deployment of next generation, last mile, telecom infrastructure is the ability of local governments to manage Public Rights of Way (PROW) [4] for the benefit of citizens. We see property taxes rise for public communications services (for education, police, fire, emergency management, etc.) as the telecom industry orchestrates legal exemptions from paying its fair share for use of public land. Year after year we watch the original sources of franchise revenues designed to protect the public’s communications interests evaporate due to the careless use of language by both protagonists as well as antagonists.

For example, any talk of migration from analog to digital or IP services is a word game that plays into the hands of the industry. As I recently heard in a discussion on National Public Radio, one of the media reform folks claimed that the Internet is a “publishing” tool and not a “communications network” for the delivery of voice, video and data services. Once again, this activates the language game since using the term “publishing” triggers the old cable companies’ claim in the 80’s, that they were “electronic publishers” with the same First Amendment right as newspapers. Obviously, newspapers aren’t regulated—so if cable is a newspaper—voila, government can’t collect a fee for use of PROW. The cable industry actually claimed that it’s infrastructure was no more than a newspaper stand using the sidewalk for free.

Many people think that American municipalities are new to the management of Public Rights of Way (PROW) when, in fact, local governments have a fiduciary responsibility to manage public land for the benefit of citizens and have been doing so for years. My recollection is that this responsibility goes back to English Common Law and has been part of American Common Law practice since the founding of the Nation. It’s also important to note that since the early ‘80s, municipalities managed on-going financial crises with the down turn in the national economy and the launching of anti-tax campaigns. Local governments consistently needed to figure out how to deliver services with constantly shrinking revenues because they are required to operate within budget. Unlike the private sector, local governments can’t wily, nilly raise rates for essential services nor, like the federal government, can they operate with trillions of dollars in deficits.

Let’s not forget what happened after the passage of the ’96 Telecom Act, which at the request of the industry classified cable modem or Internet (ISP) services as a Title VI, Cable Service. As soon as the City of Portland attempted, in its transfer of ownership proceedings, to require the same open access provisions for unaffiliated ISP services that had been imposed by the Act on Telco’s for use of their network by Competitive Local Exchange Carriers, Cablecos began the process of changing the cable modem classification from Title VI, Cable Service to Title I, Information Service. As a result, LFAs didn’t just the lose regulatory authority but it also lost some $500,000,000 in new franchise fees that were just beginning to be collected from the provision of ISP services. Once again the FCC, the Appeals Court and then Supreme Court, in the Brand X decision, upheld corporate over community interests.

Since LFAs have a fiduciary responsibility to citizens, how can they continue to permit providers of voice, video and data services to use PROW without requiring fees for that use, regardless of the classification of the service provided—Title I, Information or ISP Services, Title II, Telecommunications Services, or Title VI, Cable Services. It makes no difference how services are classified, they’re still carried on infrastructure located on public land and so must pay for that use. As an engineering friend told me, telecom infrastructure is neutral; it carries whatever you put on it. Telecom owners seeking to snivel out of legal agreements invent service classifications as a basis for land lease compensation.

Unfortunately, the easy explanation for this regulatory mess has to do with the history of development and delivery of utility and broadcast services—from telegraph to electric to telephone to radio to television to cable, satellite and cell phones and then finally to so-called broadband services of voice, video and data—which many refer to as the Internet. All of these utility and broadcast services use either the PROW or the Public Spectrum. Each of these services were given special consideration to help create viable business entities and to foster competition. Each of these services, provided by different companies, used delivery networks with differing technologies, capabilities and limitations. Regulations also considered which services were essential and thus subject to different regulation regimes and whether they fell under the purview of local, county, state or national government. Then there was the consideration of which service was intra-state or interstate and who had regulatory authority. In my opinion, these layers of definitions, classifications, issues and concerns create what I will call “Barriers to Common Sense”

My challenge is directed to the national associations that represent the interests of the LFA’s, their attorneys, advisers, as well as members of NATOA, and especially our sharp attorneys. Come up with a legal construct based upon the understanding that in a 21st Century Digital Broadband Universe voice, video and data services are just data bits delivered to a display device, regardless of whether they are delivered on wireline or wireless networks. Since all providers of broadband services must use either Public Rights of Way or Public Spectrum as pathways of delivery then all providers must pay fees to LFA’s. In the case of wireline services all providers would pay for the use of the PROW and thus make the LFAs whole as the managers of public lands. LFA’s then assume the fiduciary responsibility for managing and dispersing, for the community’s common good, revenues generated from public right of way use. In the case of wireless providers using Public Spectrum to deliver broadband services, fees would be paid to the LFA based upon subscribers’ zip codes, which conform to the geographic boundaries of LFAs. If you’re in the broadband delivery business, wired or wireless—you pay local franchising authorities—it’s the only fair way to make sure the public is compensated for use of public assets.

Now, as we head toward the 2008 Presidential election, facing the latest economic downturn caused by the credit, subprime mortgage and oil prices crises, it’s estimated that state and local governments around the country are going to lay off some 45,000+ employees. Can you imagine what a difference there would be on state, county and local government budgets if the public was being fairly compensated with the billions of dollars owed them by the telecom industry for Internet service franchise fees? We’ve been playing this negative-sum telecom word game for thirty years. How much longer can we expect the public to subsidize the telecom industry bit by bit?

Published in the NATOA Journal, Fall 2008 issue
___________________________

[Footnotes]

[1] Cableco refers to the cable companies / industry

[2] The Cable Communications Policy Act of 1984 and the Cable Consumer Protection and Competition Act of 1992.

[3] Astroturf or Astroturfing in American English is a neologism for formal public relations campaigns in politics and advertising which seem to create the impression of being spontaneous, grassroots behavior, hence the reference to the artificial grass Astro Turf.

[4] Public right of way (PROW) is the 9 feet of land on each side of every road in the U.S. reserved as utility corridors, which are purchased and maintained with tax dollars. Arguably, PROW is the most valuable real estate in the nation, granting private companies access to the marketplace in every town where a franchise is awarded. Franchise fees, PEG access and Institutional Network requirements codified the most fair and consistent form of compensation so communities benefit along with the franchisee from the success and growth of new technology and evolving innovation.