Internet Protocol Enabled Services Know the Score

1
Internet Protocol Enabled ServicesKnow the
Score

• Nicholas Miller

Santa Monica, CA May 19, 2005
2
Presenters

• Deane Leavenworth
• Vice President
• Government and Media Relations, Time Warner
  Chatsworth, CA
• Francois Barr
• Associate Professor
• Annenberg School For Communication, University of
  Southern California, Los Angeles, CA
• Nick Miller
• Miller Van Eaton
• Washington, DC San Francisco

3
Overview

• What is IP and current broadband deployment
  technologies?
• The Policy Issues
• The Interests of Local Government
• Arenas
• Regulation
• Courts
• Legislation

4
Local Governments IP Interests

• Local government has five transcendent interests
  in IP deployment
• IP should enhance all citizens quality of life
• IP Businesses should pay fair value for the use
  of any public resources
• Fair treatment for all consumers, including local
  governments
• Ensure Local Govt may provide service and
• Regulator of Last Resort.

5
Industrys Primary Interests

• The Industry seeks to maintain its privileges but
  shed its obligations
• 1. Free and unfettered use of public resources
• Escape universal service (and tax) obligations
• Avoid any state or local oversight and
• Prohibit local government provisioning of
  services.

6
REGULATORY TRACK OF THE THREAT

• TAX AND FEE FREEDOM
• Internet tax freedom
• No Cable modem franchise fees
• Excise taxes instead of right of way rent

• CLASSIFICATION AS INTERSTATE INFORMATION
  SERVICES
• Cable modem
• SBC Video over IP
• Broadband over Wireline
• Vonage
• IP Enabled Services Docket
• BellSouth Petition

• NO REGULATION OF VOIP/IP
• Universal service
• Consumer protection
• Competitor interconnection
• Preemption of state/local authority

SPECTRUM Deny superior claims of public
7
Federal Classification of Services
Information Services
Telecomm
Cable

• Title 3
• Wireless
• Federal for service
• State Local

Title 1 Federal?
Title 2 Fed/State
Title 6 Fed/Local
Cable Modem Wireline Broadband VoIP/IP IP Video
8
Federal Statutory Framework for Broadband

• Title I--FCC Jurisdiction over interstate
  communication transmissions
• Title II--FCC and state Shared Authority over
  Telecommunications Services
• 253(d)--no FCC Authority over ROW
• Title III--FCC Exclusive Authority over Wireless
  and Spectrum
• Title VI--Limited Federal Preemption of Local
  Authority over Cable Service and Cable
  Operators
• Local rent for ROW limited to PEG, I-Nets and
  franchise fees
• Cable Operator may provide Telecommunications
  Services under Title II

9
Traditional Common Carrier Regulation

• Only Telecommunications Services
• Non-Discrimination
• Interconnection
• State Regulation of intrastate service
• Federal forbearance
• Universal Service

10
THE DOMINO EFFECT

• Here we go again, with bugles blaring, we
  pronounce the classification of a service, but
  leave the hard part, understanding the
  consequences for another day.
• Commissioner Copps
• February 12, 2004

11
The Domino Effect/Impact of Federal Preemption

• Cable Modem is Interstate Information Service
  (IIS) leads to
• All Wireline Broadband is IIS leads to
• IP voice and IP video is IIS leads to
• ALL Interstate Information Services exempt from
  federal, state and local service obligations and
  taxes.

12
INDUSTRYS ARGUMENT REDUCED TOAN ANALOGY

• To promote adoption of electronic commerce,
  electric cars must be exempt from internal
  combustion engine rules, including
• Paying any tolls
• Seat belts, roll bars and other safety features
  
• Speed limits
• Absent these rules, no one will invest
• in technology needed to make electric
• cars a reality and we will fall behind Korea.

13
Local Government Wants Consequences of
classification understood (Dominos)

• CALEA
• Universal service
• Back-up power and network redundancy
• E-911 and
• ADA

• State and local
• Taxation
• Consumer protection
• Access to services
• Compensation for rights of way
• Rights of Other Providers

14
IN THE COURTS

• Missouri League
• Local government not a protected entity under 47
  U.S.C. Sec. 253(a).
• Brand X
• Is cable modem an information or telecomm service
  ?
• Santa Cruz
• City franchise actions due broad legislative
  deference.
• Rancho Palos Verdes
• Local Government violation of TCA is not civil
  rights violation.
• American Library Assn
• FCC Authority not presumed if not stated in
  statute.

15
Municipal Wish List for New Act?

• Should Congress amend the Communications Act?
• If so how?
• CAVEAT Recognize we are not the only party that
  gets to make the decision.
• We will likely need to play offense and defense.

• Amend the 96 Act to conform to local
  government policy.
• All IP Services, including cable modem
  subject to tax and fee authority.
• Preserve local governments police power and
  zoning authority.
• Make industry honor promises.

16
Local Governments Hill Agenda

• Preservation of tax and franchise authority
• Preservation of rights-of-way management and
  compensation
• Cable
• control rates
• reverse cable modem
• expand local consumer protection
• Preserve Municipal Provision of Service
• 700 MHz Public Safety Spectrum
• Interoperability Non-Interference

17
Local Government Officials Can Prevail

• Industry Anticipated Local Government Officials
  As No-Shows.
• Success in Florida, Virginia, Texas, Nevada this
  year.
• S. 150 and the treatment of the Sununu bill
  proves the possible in Congress.

18
Local Government Messages

• Local government supports IP deployment and
  availability, but IP must address
• Universal service 911/311/CALEA
• Interconnection ADA compliance
• Non-discrimination PROW use
• Fair competition Consumer Protection
• Taxes
• IP deployment too important to be left
  exclusively to market forces.
• Many market failures already evident.
• IP can develop to its full potential only if
  rules are clear and known early on.

19
CONCLUSION

• Municipal Interests In Communications Policy Are
  Unchanged BUT NOT Unchallenged.
• We can win, but we will need to work together.
• We need resources
• Time - Financial support
• Leadership

20
Miller Van Eaton We Assist Local Governments
In AchievingThe Full Benefits Of The
Communications Age For Their Communities
Gerard L. Lederer glederer_at_millervaneaton.com Mill
er Van Eaton, P.L.L.C. 1155 Connecticut Avenue,
N.W. Suite 1000 Washington, D.C.
20036-4301 phone [phone] fax [phone]
Nicholas P. Miller nmiller_at_millervaneaton.com Mill
er Van Eaton, P.L.L.C. 1155 Connecticut Avenue,
N.W. Suite 1000 Washington, D.C.
20036-4301 phone [phone] fax [phone]