By Ron Thaniel and Lina Garcia
October 21, 2002

The U.S. Conference of Mayors and a coalition of local government organizations filed a brief before the 9th Circuit Court of Appeals challenging the Federal Communication Commission's (FCC) interpretation of the 1996 Telecommunications Act and its finding that cable modem service is outside the scope of local franchising authorities.

At stake in the appeal is an estimated $300 million per year in cable franchise fees, a figure that is likely to mushroom in the years ahead, and a loss that local governments cannot afford in light of the current economy.

The U.S. Conference of Mayors, National League of Cities, the National Association of Counties, the International Municipal Lawyers Association and the National Association of Telecommunications Officers and Advisors announced in May the creation of the coalition referred to as the Alliance of Local Government Officials Against Preemption (ALOAP).

The coalition has previously filed comments before the FCC in the proceeding addressing cable modem issues. On October 10, four of the associations jointly filed an initial brief before the Court of Appeals for the Ninth Circuit challenging the FCC's findings in its March 15, 2002 Declaratory Ruling. The International Municipal Lawyers Association joins the group as an Intervenor by a separate filing to be made in the coming weeks.

The brief from local government groups argues that cable modem services is a -cable service- within the meaning of the 1996 Telecommunications Act, and that the FCC was wrong in concluding otherwise in its March 2002 Declaratory Ruling.

The local government organizations pointed out that the only way that the plain language of the Telecommunications Act, the legislative history of the "cable service" definition, the 1998 Internet Tax Freedom Act, and other FCC decisions can be read together in a coherent, consistent manner is to classify cable modem service as a "cable service."

The FCC's Declaratory Ruling, in contrast, improperly seeks to rewrite the law to elevate the policy preferences of an unelected FCC over those of Congress as expressed in the Telecommunications Act.

During the U.S. Conference of Mayors Fall Leadership Meeting in September, Dearborn Mayor Michael A. Guido noted that the FCC Cable Modem ruling "in one swoop, took money away from us that we counted on to maintain streets, police, sanitation, parks, and recreation budgets around the country."

The brief filed before the Ninth Circuit Court of Appeals is available for review on the U.S. Conference of Mayors homepage at http://www.usmayors.org.