As I continue to make my way through the latest draft of the new telecom law, one of the principle items of concern for the next round of the telecommunications revolution is going to be the issue of requirements for local franchises.
The bill creates a class of services called Broadband Video Services. Within the text of the latest draft, these services and those who provide them are defined as:
BROADBAND VIDEO SERVICE.The term broadband video service means a two-way service that
(A) is offered, with or without a fee, to the public or to such classes of users as to be effectively available to the public, regardless of the facilities used;
(B) is offered in a manner that enables subscribers to integrate
(i) a video programming package, with
(ii) customizable, interactive voice and data features, functions, or capabilities, which may include caller identification, call management, and the ability to access information derived from the Internet; and may be included or offered with, but shall not be treated as subsumed in or subsuming, VOIP service or BITS.
BROADBAND VIDEO SERVICE PROVIDER. The term broadband video service provider means any person who provides, or offers to provide, directly or through an affiliate, a broadband video service that is delivered directly to subscribers over facilities the service provider or its affiliate owns or controls.
The definitions do not address the question of protocols or facilities with respect to two-way transmission of the broadband video, nor any other place in the bill. In fact, the only real details to hang your hat on are the specifications that the service be two-way and include a video programming component. For our purposes we will assume that IPTV falls into the category of a Broadband Video Service. Would it be possible for Comcast to argue that their video services are “two way” based on the ability to access on demand programming?
The section of the bill devoted specifically to the question of franchise does not indicate that Broadband Video Service providers will be required to register with local franchise authorities. My assumption is that since they don’t specify this requirement it does not exist. Likewise, the bill does not indicate that traditional cable companies will be freed from the requirement to seek local franchise arrangements. How about as the cable companies make legal arguments that their services are actually TV How about when cable companies introduce services delivered through new mechanisms that clearly are IPTV
I acknowledge that this post is asking a lot more questions than it answers, but these are some good questions that are going to define the future of both broadband and video programming. Some battle lines are already being drawn.
In California, a cable trade group has claimed that AT&T’s plans to roll out IPTV in San Ramon is illegal because AT&T haven’t received a franchise from the local franchise authority. Comcast is the incumbent multi-service cable operator in San Ramon. The trade group claims that AT&T’s IPTV service is an equivalent offering to cable television, and therefor is required to have a franchise agreement.
The arguments on each side are:
Jeffrey Sinsheimer, vice president for law and public policy for the California Cable and Telecommunications Association, insisted to the council that Project Lightspeed is a cable system, which would require a franchise agreement under federal law.
Shiyama Clunie, an AT&T manager, responded that Project Lightspeed is not a cable service as defined under the municipal code or state or federal law. It would deliver video programming over a switched, two-way interactive IP-based network, which is different than a cable system, Clunie told council members.
I have to come down on the side of AT&T on this one. The whole franchise requirement is a joke that has helped ensures that cable video services in the vast, vast majority of the country are monopolies and helps contribute to the fact that broadband in the United States is basically a duopoly.
Now, unfortunately the new telecom bill gives franchise authority over rights of way and easement, including enforce use of easements and rights of way as well as defining allowable time, place and manner for installation and maintenance of infrastructure in rights of way. My suspicion is that local franchise authorities will use these powers to put the screws to competing video and broadband providers.
