A coalition of six organizations has sued the Federal Communications Commission, asking the Sixth Circuit Court of Appeals to stay the agency's December 2006 Order streamlining video franchising rules for cities and counties.

"The FCC overrules Congressional intent, sets aside court jurisdiction, and wants us to ignore community needs," Donald J. Borut, executive director of the National League of Cities (NLC), one of the groups filing suit, declared in a press statement yesterday. "The FCC's action is purely a contrived and transparent attempt to legislate."

But what really concerns this coalition are not the limits of FCC authority, but rules that will dramatically curtail the ability of the nation's over 30,000 Local Franchising Areas (LFAs) to negotiate with video and broadband service providers.

At stake, argue the plaintiffs, is the degree to which local governments can require video providers to provide access to everyone.

"For instance, as outlined in the [lawsuit], one major new video provider plans to 'focus almost exclusively on affluent neighborhoods' with its service available to less than 5 percent of customers in 'low-value' neighborhoods," the coalition's press statement warns.

To recap, here is what the FCC decided in its December 2006 Order:

• The Commission will get tough on "unreasonable" demands that video providers commit to "unreasonable obligations relating to public, educational, and governmental ('PEG') and institutional networks ('I-Nets')" - in other words, requirements that if a big telco wants access to a city's infrastructure to roll out fiber optic video, it has to contribute something to the town's colleges and schools.
• The agency will put a limit on the amount of time it takes for a government to negotiate a franchise with a video provider - a 90 day shot clock requiring final action on a new franchise application," as the coalition suit describes it. What exactly happens after 90 days isn't clear, but critics charge that the ambiguity provides an incentive for new entrants to wait out the process.
• The FCC will end what the Commission calls "unreasonable build-out requirements" for a new franchisee. The coalition argues that these requirements are often simply requests that franchise applicants offer poorer neighborhoods adequate video access.
• The FCC will enforce ceilings on franchise fees.

The big telcos, anxious to make inroads into the cable market, praised these new guidelines. Community media groups swore to fight them down the line.

"The FCC, in the spirit of Christmas, has given the biggest gift of all to the giant telephone companies while the children of our cities and towns get a lump of coal in their torn stockings," declared Anthony Riddle, Executive Director of The Alliance for Community Media, on the day of the decision.

"This fight is not over. It will never be over. We think that light needs to be shined on this arcane, closed door process by which the rights of the many can be sold for interests of a few big companies."

Predictably, the FCC's Order is now in court. The coalition petitioners include the Alliance for Communications Democracy (ACD), the Alliance for Community Media (ACM), the National Association of Counties (NACo), the National League of Cities (NLC), the National Association of Telecommunications Officers and Advisors (NATOA), and The United States Conference of Mayors (USCM).

They argue that:

The FCC has no statutory authority for its Order.. The 1984 Cable Act gave Congress, not the FCC, authority to establish franchising guidelines.

The FCC made no serious effort to collect data before making its decision.
"The record on which the FCC acted contains allegations against LFAs which are anonymous, hearsay-based, inaccurate, and outdated," the lawsuit charges. "Further, the Commission wholly ignores facts placed in the record by LFAs that refute such allegations."

The FCC cannot take over the job of communities to regulate their cable access.
"Local governments listen to constituents and respond to their specific needs every day and are directly answerable to the local electorate for their decisions. The FCC could not possibly assume this role."

The coalition has asked the Sixth Circuit Court to overturn the FCC's ruling. They have also asked the court to block the move prior to making a final decision.