Ajit Pai is proposing a plan that would stop cities and towns from using their authority over cable TV networks to regulate internet access. His proposal, which is scheduled for a vote on August 1st, “would also limit the fees that municipalities can charge cable companies,” reports Ars Technica. “Cable industry lobbyists have urged the FCC to stop cities and towns from assessing fees on the revenue cable companies make from broadband.” From the report: If approved, Pai’s proposal would “Prohibit LFAs [local franchising authorities] from using their video franchising authority to regulate most non-cable services, including broadband Internet service, offered over cable systems by incumbent cable operators.” Pai’s proposal complains that “some states and localities are purporting to assert authority” to collect fees and impose requirements that aren’t explicitly allowed by Title VI, the cable-regulation section that Congress added to communications law with the Cable Act of 1984.
Despite the Oregon Supreme Court ruling against Comcast, Pai’s plan says “the majority of courts… have interpreted section 622(b) to prohibit states and localities from charging fees that exceed those expressly permitted by Title VI.” Section 622 prevents local authorities from collecting more than 5 percent of a cable operator’s gross revenue in any 12-month period. Pai’s proposal also declares that “in-kind” contributions required by local franchising authorities must count toward that 5 percent cap, “with limited exceptions, including an exemption for certain capital costs related to public, educational, and governmental access (PEG) channels.” But does the FCC have the power to preempt these local fees and requirements? “Having classified broadband as an information service (as part of its repeal of net neutrality rules), the Commission has determined that it is an unregulated service that it lacks regulatory authority over,” consumer-advocacy group Public Knowledge wrote in a November 2018 filing that urged the FCC to drop the plan. The FCC cannot regulate or preempt local regulation of “any service that does not fall within its Title II jurisdiction over common carrier services or its Title I jurisdiction over matters ‘incidental’ to communication by wire,” the group said.