Loudoun County has entered into cable franchise agreements with Comcast and with Verizon. In the previous article we reproduced the text of Loudoun County Staff’s evaluation of the franchise agreements. In this article we want to answer the question: What do the franchise agreements say in layman’s terms? We want to keep this focused and as short as possible, so we will focus on the parts of the agreements that directly impact the ability of a resident to get cable service at their home.
Do the Franchise Agreements Apply to Broadband?
One of the key items to understand when reading a cable franchise agreement is that the agreement applies to the delivery of Cable Service and grants the franchisee the “right to own, construct, operate and maintain a Cable System along the Public Rights-of-Way” (Clause 2.1 of each of the franchise agreements).
The definitions of Cable Service and Cable System is found in federal law at 47 U.S.C. § 522(6) and 47 U.S.C. § 522(7), respectively. Simply put, Cable Service is the delivery of one-way television service and nothing more.
What does this mean for us looking for broadband services? It means that a cable franchise agreement may not address broadband Internet access or require that broadband Internet access be provided.
Nowhere in the Loudoun County franchise agreement is broadband mentioned, and, in fact, federal law (47 U.S.C § 541.b) expressly forbids regulation of Internet services (an information service) in a cable franchise agreement.
Yeah, but…
Okay, that’s all fine, but we know that cable operators are not building their network only for one-way video services. If they will build “cable service” to my location, we can be pretty sure broadband Internet service will be offered, too.
So, what about the network build requirements in the franchise agreements? Can’t those requirements help?
The franchise agreements contain the following requirements for “service area” coverage.
The franchisee (the cable operator) is required to provide service where:
-
-
- There are 20 or more homes (house, apartment, condo, etc) per “strand mile”;
- A potential subscriber is willing to pay the cost of extending the cable network to the subscriber’s location
- There are at least 15 potential subscribers per “strand mile” that commit to taking service
-
Those terms seem pretty clear, but, as they say, the devil is in the details. In this case, the bedeviling detail is the definition of “strand mile”. In the agreement, the actual criteria used is “strand footage as measured from the nearest technically feasible point on the Cable System”.
Strand footage is what it sounds like – it’s the length of the cable running down the street. Unfortunately, the agreements do not define “nearest technically feasible point”, and, so, it is open to determination by the operator.
What does this mean for us that are looking for broadband services in rural areas? It means that if the cable operator determines that you are too far from “the nearest technically feasible point” – as defined by the cable operator – you either pay the operator’s cost of construction or you don’t get to purchase their broadband service.
Some have mentioned a “150 foot requirement”. According to clause 3.2, the operator is not required to provide service to a home that is greater than 150 feet from the cable, unless the homeowner pays the cost of construction (clause 3.2.1).
Loudoun County has a lot of homes that fit into this category. For those homeowners, under requirement #3 listed above, neighbors could commit to taking service under the combined terms of clause 3.1.2.2 and 3.2.1.
Some have posited that there are neighborhoods that meet the 20-homes-per-mile requirement, but, because those homes sit more than 150 feet from the cable, they are incorrectly excluded from the density calculations. This could be a valid concern and might be an area for Loudoun County to clarify the franchise agreement.
In Summary
In summary, and repeating from the previous article on this topic:
The franchise agreements apply to cable television and, by federal law, cannot regulate the delivery of Internet access. The density requirements in the franchise agreements do not favor the rural communities and, where a neighborhood appears to meet the density criteria, the agreements leave room for the cable operator to differ in its evaluation and still be in compliance.