director of the National Association of Telecommunications Officers and Advisors.
"We believe the FCC was wrong in its determination that cable-modem service is a purely information service outside the scope of Title VI of the Telecommunications Act," Beaty said.
The ALOAP's comments to the FCC argue that local governments hold significant authority over cable-modem services - despite the commission's declaration of those services as information services - so long as the infrastructure behind the services is in public rights of way and delivered over public property that is held under trusteeship of local governments.
"The FCC's interpretation of Title VI is that it is preemptive of local government, and I believe they're reading that statute incorrectly," Beaty said. "Upon review, one would find that what the statute did was codify the current practices of local government that had historically been in place and limited the FCC's jurisdiction."
This fight could be complicated by customer-service matters and even privacy concerns, because Congress was explicit in its intent that local governments can implement and enforce customer-service and privacy standards that exceed those set by the FCC.
The NLC's Otero predicts a battle over rights-of-way issues in the future.
"We're heading for a huge throw down on this particular issue," he said. "If industry had its druthers, we'd be taken out of the mix altogether. Local elected officials often get depicted as the Luddites who are trying to hold back technology; [but] it's just the opposite."
An About Face
A curious facet of this fight is how the cable companies themselves feel, according to Beaty.
"Up until just a few months before the FCC issued its decision, the cable industry was agreeing with us - that this is a cable service," she said. "All of their initial comments to the FCC's Notice of Inquiry, all of their on-the-record comments were that this is cable service. They agreed with us."
The cable companies were happy with their agreements with state and local governments, even with paying the fees, said Beaty. They had explicit guidelines about the costs and requirements for rolling out broadband, and the agreements were long term - 10 to 15 years.
"But, given the opportunity not to have to pay at all -- they're a business; of course, they're going to say, 'Oh, that's great,'" Beaty added.
She said the FCC's decision has caused a rift between local governments and the feds. However, local governments have a mutually beneficial relationship with cable companies, and the decision won't derail that relationship. It also won't stop the push for broadband.
"There's no greater economic-development tool available to a local government than broadband," she said. "Everybody wants it. Everybody needs it. We all want it in our communities. At the same time, it can't be there at any cost. It's a fine line."