By Jeffrey Krauss, Modem Maven
and President of Telecommunications
and Technology Policy
What do you think about letting franchising authorities impose technical standards for cable modem service? Pretty scary, right? But that's the direction the local cable advisory committee is going where I live. First, I have to disclose that I tried to join the cable advisory committee. I submitted an application to the county executive, was interviewed by the county staff and several of the advisory committee members, and finally, the county executive decided to appoint me. Anyway, eventually the proposed appointment went to the county council for confirmation, and that's where I was shot down. I was convicted, by a four-to-four vote, of having ties to the industry. I wasn't a "consumer advocate."

Anyway, during the six months I was an applicant, I attended several of the advisory committee meetings, and heard committee members complain about the service quality of the cable modem service. So now they are considering a proposal to adopt technical service standards. For example:

  • The download data rate should not drop below 512 kbps for more than one hour in any 24 hours, nor below 1 Mbps for more than six hours in any 24;
  • IP latency should not drop below 60 milliseconds for more than one hour in any 24, nor below 30 ms for more than six hours in any 24;
  • The outbound mail server must attempt delivery within five minutes 95 percent of the time. And the list of requirements goes on and on; some of them are quite ridiculous.

Of course, being consumer advocates, the committee members don't feel constrained by the FCC's policies that pre-empt local regulation of cable system technical standards. The FCC pre-empted local regulation of cable technical standards back in the 1980s, but a court ruled that the FCC had authority to pre-empt local technical requirements only for retransmission of broadcast signals, not for transmission of other signals. This finally led to a series of negotiations between the cable industry and the National League of Cities that eventually resulted in the technical rules that are now embodied in Section 76.605 of the FCC Rules. Since then, the 1992 Cable Act and the 1996 Telecommunications Act have clarified and expanded the FCC's ability to pre-empt local regulation of cable service technical standards. But the FCC's technical rules cover only analog video service, not digital video and not cable modem service, and the issue of whether the FCC can pre-empt local technical regulations if it does not have applicable federal technical rules in place has never been fully tested.

So six months ago, when cable modem service was being treated as a cable service, the answers were simple, but it depended on whom you asked. The cable industry would say that the FCC has pre-empted local technical regulation of all cable services, including cable modem service. Some franchising authorities would say that the federal pre-emption only covers analog video service.

On March 14, 2002, circumstances changed when the FCC decided that cable modem service is not a cable service, but instead, it is an information service. In the same document, it asked a long series of questions about how this information service should be regulated. Some of the questions deal with technical rules. In introducing this issue, the FCC said:

We would be concerned if a patchwork of State and local regulations beyond matters of purely local concern resulted in inconsistent requirements affecting cable modem service, the technical design of the cable modem service facilities, or business arrangements that discouraged cable modem service deployment across political boundaries.

But the question is whether the FCC has legal authority to pre-empt local technical regulation. The FCC has goals under the Communications Act to "promote the deployment of advanced telecommunications capability to all Americans in a reasonable and timely manner," "to promote the continued development of the Internet and other interactive computer services and other interactive media" and "to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation." Courts have held that the FCC can pre-empt local regulations that conflict with FCC goals. But that legal approach is a little risky, because it assumes that local technical rules will automatically conflict with those broad FCC goals.

So the FCC has also asked whether Section 624 of the Communications Act, which explicitly gives the FCC authority to pre-empt local technical regulation of cable services, also covers cable modem service. That part of the law states that a franchising authority "may not?establish requirements for video programming or other information services." Because cable modem service has been classed by the FCC as an information service, that seems like a winning argument for pre-emption.

But you never know. The FCC's decision is already being appealed. And the decision nine to 12 months from now, which will undoubtedly pre-empt local technical regulation, will also be appealed. Meanwhile, if my experience provides any guide, some local franchise authorities will be gearing up to try to impose technical standards on cable modem service. Be on the lookout.

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