March 26, 1999

I write separately to clarify my views on the technical standards section.

First, I believe that the Order fails to adequately acknowledge the ambiguity of the term "transmission technology." As the comments reflect, that term can be interpreted in several different ways, each plausible on its face. Neither the Communications Act, the legislative history, nor Commission precedent (until today) provide any clear guidance for choosing one definition over another. Thus, while I do not disagree with the interpretation of "transmission technology" ultimately adopted in today's Order, it is not the only plausible interpretation of the term.

Second, I would have made it clearer that parties should be protected from piecemeal abrogation of existing franchise agreements. As the Order notes, Section 624(e) was signed into law over three years ago. Since that time, the Commission failed to provide any guidance as to the meaning of Section 624(e), thereby forcing parties to enter into agreements based upon their own interpretation of the statute. Given Section 624(e)'s ambiguity, parties may have mistakenly drafted provisions that they believed were permissible regulation of facilities and equipment under Section 624(b), but which under today's Order would constitute an impermissible regulation of transmission technology. These mistakes were mutual: as the item notes, we have not received a single formal complaint from any party claiming that its Section 624(e) rights have been violated. Moreover, these mistakes were avoidable. Had the Commission spoken earlier, parties could have phrased their agreements in a way that would have complied with today's Order. Thus, given the Commission's delay and the parties' mutually mistaken reading of an ambiguous statute, I believe it would be patently unfair for these provisions to simply be struck from existing franchise agreements while the remainder of the agreement is enforced. I express no opinion on whether such agreements should be found enforceable or rescinded in their entirety, or reformed pursuant to renegotiation between the parties.

Indeed, I believe that simply striking contractual provisions that may now violate Section 624(e), without the opportunity for renegotiation, would violate the framework that Congress established in Section 624. Congress granted local authorities the right to regulate facilities and equipment in Section 624(b), so long as they did not step over the vague line into "transmission technology." For three years, the Commission provided no guidance regarding where that line was located. Now it appears that some local authorities and cable operators may have made incorrect -- albeit reasonable -- judgments about where Section 624(b) ended and Section 624(e) began. Had they had the benefit of today's Order, these mistakes could have been corrected in the drafting stage. Simply striking specific franchise provisions would deprive local communities of their legitimate rights to regulate facilities and equipment under Section 624(b). It would find that because they inadvertantly stepped over the line that divides Section 624(b) and Section 624(e), that they have lost all of their rights under Section 624(b) for the length of the franchise term. Local communities should not pay such a high price for the Commission's indefensible delay.

Finally, I would be opposed to extending the definition of "transmission technology" beyond the specific examples cited in the Order.⁽¹⁾ For instance, I would be opposed to extending the definition to prohibit agreements that provide for a certain MHz level or a certain number of homes per fiber node. I believe we have done our statutory duty to fairly interpret the meaning of "transmission technology." Any expansion of that definition, I believe, would tread on the legitimate rights of local authorities.