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BROADBAND AND EMERGING
TELECOMMUNICATIONS ISSUES
June 20, 2013
CML’s 91st Annual Conference
June 18 – 21, 2013
Vail, Colorado
Ken Fellman, Esq.
Kissinger & Fellman, P.C.
3773 Cherry Creek N. Drive, Suite 900
Denver, Colorado 80202
303-320-6100
[email protected]
www.kandf.com
Why Municipal Broadband?
Economic development/jobs
Health care
Educational opportunities
More cost effective government use of
broadband
“While it is difficult to measure the impact of many local efforts,
these efforts should be encouraged when they make sense. However,
18 states have passed laws to restrict or explicitly prohibit
municipalities from offering broadband services. Some states …
have outright bans on municipalities offering any wholesale or retail
broadband service. Other states … set conditions that make municipal
broadband both harder to deploy and more costly for consumers.
Restricting these networks in some cases restricts the country’s ability
to close the broadband availability gap, and should be revisited.”
“Local governments and regions often organize themselves to
support deployment in their communities. According to recent
market research, as of October 2009, there were 57 fiber-tothe-premises (FTTP) municipal deployments, either in
operation or actively being built, in 85 towns and cities in the
United States. These deployments collectively serve 3.4% of the
FTTP subscribers in North America.”
NBP Recommendation 8.19: Congress should make clear that
Tribal, state, regional and local governments can build
broadband networks.
“Municipal broadband has risks. Municipally financed service may
discourage investment by private companies. Before embarking on any
type of broadband buildout, whether wired or wireless, towns and cities
should try to attract private sector broadband investment. But in the
absence of that investment, they should have the right to move forward
and build networks that serve their constituents as they deem
appropriate.”
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Gigabit
Challenge
 On January 18, 2013, FCC Chairman
Julius Genachowski called for at least
one gigabit community in all 50 states by 2015
 “American economic history teaches a clear lesson about
infrastructure. If we build it, innovation will come. The
U.S. needs a critical mass of gigabit communities
nationwide so that innovators can develop nextgeneration applications and services that will drive
economic growth and global competitiveness.”
Not Many Gigabit Options in Colorado
Why Not?
 Why?
Legislative Background
SENATE BILL 152
Any local government that provides or is
considering providing communications
services in government facilities or to end
user customers must consider how Colorado
Senate Bill 152 will affect the offering of
these services
In 2005, the Colorado General Assembly
passed SB 152.
 “Competition in Utility and Entertainment Services.”
o Codified in COLO. REV. STAT. ANN. § 29-27-101 et seq.
Legislature’s stated intent behind the act:
 Predictability, uniformity, and fairness in the cable
television, telecommunications, and high-speed
Internet access industries, especially where affected
by municipal actions.
o COLO. REV. STAT. ANN. §§ 29-27-101(1), (2)(a), (2)(c)
SB 152
Definitions
Legislative Background
In general, SB 152 prohibits local
governments from directly or
indirectly providing cable television
service, telecommunications service,
or advanced service.
o COLO. REV. STAT. ANN. § 29-27-103
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SB 152
Definitions
Some Key Definitions
 Cable television service
 The one-way transmission to subscribers of video
programming or other programming service, as well
as subscriber interaction, if any, that is required for
the selection or use of the video programming or
other programming service.
o
SB 152
Definitions
Some Key Definitions
 Telecommunications
service
 The electronic or optical
transmission of information between
separate points by prearranged means
o This is a far broader definition than
the way telecommunications service is
defined in federal law
This is the same definition that appears in the federal
Cable Act.
SB 152
Definitions
Some Key Definitions
Advanced service
 High-speed internet access
capability in excess of two
hundred fifty six kilobits per
second both upstream and
downstream
o COLO. REV. STAT. ANN.
§ 29-27-102(1)
Analysis – “Providing Service”
 The relevant portion of the legislation states that a local
government “provides” cable, telecommunications or advanced
service if the service is provided “directly” to one or more
subscribers.
 COLO. REV. STAT. ANN.
29-27-103(2)
Analysis – “Subscriber”
 Does providing service to “subscribers” entail someone
signing up and paying for the service?
Exceptions
 That is not the case under state statute
 The statute defines “subscriber” as “a person that
lawfully receives cable television service,
telecommunications service, or advanced service.”
 In other words, if a person is using the service with permission,
he or she is a “subscriber” under state law
o COLO. REV. STAT. ANN.
29-27-102(5)
 SB 152 identifies four ways in which a local government
can engage in the provision of services:
 The locality can provide a limited category of services
that are not otherwise covered by the statute
o COLO. REV. STAT. ANN. § 29-27-102(5)
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Exceptions
 The local government may sell or lease to private
entities excess capacity on its own network, if that
excess capacity is “insubstantial” in comparison to the
governmental uses of the network
o COLO. REV. STAT. ANN. § 29-27-302(3)
 The local government can provide those services that
private providers choose not to provide within the
government’s jurisdictional boundaries
o COLO. REV. STAT. ANN. § 29-27-202(1)(a)
Voter Approval - Longmont
Exceptions
 Provision of services allowed after voter approval
o COLO. REV. STAT. Ann. § 29-27-201(1)
 The ballot question in such an election must “pose the
question as a single subject” and “include a
description of the nature of the proposed service, the
role that the local government will have in provision of
the service, and the intended subscribers of such
service.”
o COLO. REV. STAT. ANN. § 29-27-201(2)
A Frequently Asked Question
Is it legal for government to provide free Wi-Fi
in public places?
A: Without prior voter approval (unless no private provider
offers Wi-Fi or the service was being provided by the
government prior to the 2005 effective date of the
legislation), almost every municipality, county, public library,
airport (and yes, even the General Assembly at the State
Capitol) offering Wi-Fi is violating the statute.
Why Are These Actions Not
Challenged?
Possible Future Legislative Change?
 Industry pushed the legislation to make it difficult for
local governments to compete in providing services
 Statutory definitions and prohibitions are intentionally
broad
 While a local government push to provide paid service to
residents and businesses without voter approval would
likely be challenged, no company wants the headline in
the local paper to read “[Insert name of company] Shuts
Down Wi-Fi at Public Library.”
 Should SB 152 be amended to promote public-private
partnerships, enabling governments with excess network
capacity to make that infrastructure available to private
entities without a vote?
 Should SB 152 be amended to eliminate the vote
requirement when a provider offers service – just not the
level of service a community needs for its economic
development, educational or other plans?
 Should SB 152 be repealed in order to restore complete
local control to the entity most concerned and directly
responsible for our broadband futures?
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Recovery Act:
Broadband Technology Opportunities Program
(BTOP)
 In Colorado, the EAGLE-Net Alliance (an
intergovernmental entity) is building a statewide,
middle mile broadband network to bring bigger, faster
and more affordable broadband access to schools,
libraries, city halls, E-911 authorities and other
community anchor institutions
 $100.6 million federal grant
 Controversial project – has faced significant
opposition
Ken Fellman, Esq.
Kissinger & Fellman, P.C.
303-320-6100
[email protected]
www.kandf.com
Questions …
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