FCC, Localities in Video Franchising Fight Joust Over Net Neutrality Decision

said Montgomery and Anne Arundel counties, Maryland, and Dubuque, Iowa, in a filing (in Pacer) Tuesday before the 6th U.S. Circuit Court of Appeals. They and the FCC disagree about the significance of that decision in their appeal of a 2007 FCC order that extended to incumbent cable operators many limits put on new entrants and a 2015 order clarifying that franchising regulations don't apply to state laws on cable TV or to state-level franchising authorities (see 1605020030). The USTelecom v. FCC ruling "concerns the classification of a service, not the facilities transited by the service," the municipal interests said. Since entities providing common carrier services via cable systems are often different parties than cable system operators themselves, the FCC is on shaky ground because USTelecom suggests the FCC may be constitutionally barred from imposed common carrier obligations on a provider "not simply holding itself out as a 'neutral indiscriminate conduit,'" the municipal interests said in reply to an FCC brief (in Pacer) filed in June after the USTelecom decision. In it, the FCC argued the D.C. Circuit in its USTelecom decision rejected the municipal interests' argument that the NARUC test for determining common carriage is dispositive and instead sided with the FCC that broadband providers, including those that also offer cable services, are common carriers when they provide telco services. That lines up with the FCC stance that a cable operator's facility is a common-carrier facility when it provides common-carrier services, the agency said: "The D.C. Circuit's analysis, while not binding on this Court, is thorough and persuasive."