Miller

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MUNICIPAL COMMUNICATIONS SYSTEMS

• Key Legal Issues for Texas Cities

COMMMUNITY BROADBAND WI-FI AND BEYOND AUSTIN,
TEXAS AUGUST 2, 2007 by Joseph Van
Eaton Partners, Miller Van Eaton
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Summary of Presentation

• Basic terminology/concepts
• State law and municipal networking
• Federal law and municipal networking
• A closer look Wi-Fi legal issues
• Conclusion what legal requirements mean for
  planning and implementation

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Terms

• Three basic categories of services
• Cable service
• Telecommunications service common carriage of
  signals chosen by the user to locations
  designated by the user
• Information services services involving
  storage, forwarding and manipulation of
  information call waiting, e-mail, Internet
  service
• CAUTIONS definitions vary slightly, state to
  state and from fed to states AND there are many
  activities outside these definitions AND many
  activities whose status is unknown

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Basic Structural Issues

• Two basic modes of communication
• Wireline
• Wireless
• Each can be used to provide telecom, information
  or video services
• For wireless modes, service may be provided on
• licensed frequencies (protected from interference
  by others)
• unlicensed frequencies (Wi-Fi being a prime
  example) no interference protection

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Significance

• State law defines
• what services a municipality may provide, and
  under what conditions
• roles of the state and locality in regulating
  providers, consistent with federal law
• Federal law defines obligations and rights that
  attach when
• a locality is providing a particular type of
  service in a particular way
• a locality is regulating another service provider

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Key State Law Issues

• Texas law effectively prohibits a locality from
  providing most telecom services directly or
  indirectly to the public BUT
• Texas law does not prevent localities from
  providing cable services or information services
  wirelessly or via wireline facilities
• Texas law does not prevent a locality from
  leasing dark fiber on a nondiscriminatory,
  nonpreferential basis
• Texas law allows provision of telecom services as
  part of the provision of an energy service.
• See TEXAS UTILITY CODE SEC 54.201-202

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Key State Law Issues

• UTILITY CODE 54.204 contains strong
  anti-discrimination provisions with respect to
  telecom service
• access to RoW
• access to buildings
• pole attachment and conduit rates
• AND requires a uniform pole/conduit attachment
  rate
• LOCAL GOVT CODE 283.056 allows for police power
  regulation of telecom providers
• apply to all persons
• competitively neutral and non-discriminatory
• UTILITY CODE 66.010 contains similar requirements
  for an entity holding a state video franchise

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Federal Law Key Points

• Contains nothing that directly restricts
  localities from providing telecom services, cable
  services, or information services. BUT
• Different rights and obligations apply depending
  on what services are provided and how those are
  provided
• Generally telecom service and cable service
  providers have greatest regulatory obligations,
  and regulatory benefits

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Trade-offs Info Services v. Telecom Services

• No state PUC or local regulation
• FCC is applying (or considering applying)
• CALEA
• 911
• Other requirements
• No rights against carriers for
• Interconnection
• Non-discrimination
• Revenue sharing
• No 224 (pole attachment) rights of CATV or
  Telecomm Service

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Federal Law Key Points

• Federal law imposes limitations on local
  authority to regulate, e.g.
• Sec 253 non-discriminatory access to RoW (and
  other facilities?) for telecom providers
• Over-the-Air Reception Devices Rule (OTARD)
• Limitation on local authority to prevent
  interference in unlicensed spectrum

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Federal Law Key Points

• AND Federal law may create new opportunities
• Public safety spectrum (generally)
• 700 MHz
• Lautenberg/Boucher bills (preempting states laws
  prohibiting municipalities from providing
  advanced telecom services)

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Applying the Rules Wi-Fi

• Several different models for provision of Wi-Fi.
• Municipal Provisioning
• Free Service License
• Revenue-Generating License
• Anchor Tenant
• Franchise

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Examples of legal issues

• Regulation of Radio Frequency Interference
• Compliance with the Communications Assistance to
  Law Enforcement Act (CALEA) Pub. L. No.
  103-414, 108 Stat. 427 (1994) (codified in 18
  U.S.C. and 47 U.S.C.)
• Compliance with OTARD
• Management of the Public Rights-of-Way

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Comparing the Models

• Where municipality is providing service, it must
  comply with federal requirements like CALEA but
  local ability to prevent frequency interference,
  control RoW use is maximized
• Where municipality is partnering to provide
  service, CALEA may not apply (depending on
  municipal role), but other issues are of greater
  concern.

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Example OTARD

• Danger if provider has exclusive use of space on
  pole, it may be entitled to provide services, and
  install facilities not contemplated by contracts
• Possible approach carefully craft contract to
  avoid granting OTARD rights seek waivers of
  OTARD rights

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Example RoW

• Danger If locality mixes RoW regulation with
  contract for services, it may find itself forced
  to extend the same benefits to other RoW users
• Approach do not mix service concepts/ RoW
  regulation or provide means for altering the
  contract if a problem arises

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Looking Beyond Wi-Fi

• Planning for a municipal system requires
  localities to decide
• WHAT services to provide
• TO WHOM the services should be provided
• WHAT technology will be used to deliver the
  services
• WHO will own facilities/provide services
• ALL these issues are driven by legal
  considerations, which impose different
  limitations/costs depending on choices made

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Looking Beyond Wi-Fi

• This field is rapidly changing, and there may be
  different ways to meet goals
• Important to retain flexibility, while focusing
  on what is required to meet current goals
• Required coordinated, careful legal planning at
  every stage of the process