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MUNICIPAL COMMUNICATIONS SYSTEMS

August 2, 2007 Page 2. Miller

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MUNICIPAL COMMUNICATIONS SYSTEMS

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    1. Miller & Van Eaton P.L.L.C Washington D.C. • San Francisco, California MUNICIPAL COMMUNICATIONS SYSTEMS Key Legal Issues for Texas Cities

    2. August 2, 2007 Page 2 Miller & Van Eaton P.L.L.C Summary of Presentation Basic terminology/concepts State law and municipal networking Federal law and municipal networking A closer look: Wi-Fi legal issues Conclusion: what legal requirements mean for planning and implementation

    3. August 2, 2007 Page 3 Miller & Van Eaton P.L.L.C Terms Three basic categories of services Cable service Telecommunications service – common carriage of signals chosen by the user to locations designated by the user Information services – services involving storage, forwarding and manipulation of information: call waiting, e-mail, Internet service CAUTIONS: definitions vary slightly, state to state and from fed to states; AND there are many activities outside these definitions; AND many activities whose status is unknown

    4. August 2, 2007 Page 4 Miller & Van Eaton P.L.L.C Basic Structural Issues Two basic modes of communication Wireline Wireless Each can be used to provide telecom, information or video services For wireless modes, service may be provided on: licensed frequencies (protected from interference by others) unlicensed frequencies (Wi-Fi being a prime example) – no interference protection

    5. August 2, 2007 Page 5 Miller & Van Eaton P.L.L.C Significance State law defines: what services a municipality may provide, and under what conditions roles of the state and locality in regulating providers, consistent with federal law Federal law defines obligations and rights that attach when: a locality is providing a particular type of service in a particular way a locality is regulating another service provider

    6. August 2, 2007 Page 6 Miller & Van Eaton P.L.L.C Key State Law Issues Texas law effectively prohibits a locality from providing most telecom services directly or indirectly to the public; BUT Texas law does not prevent localities from providing cable services or information services wirelessly or via wireline facilities Texas law does not prevent a locality from leasing dark fiber “on a nondiscriminatory, nonpreferential basis” Texas law allows provision of telecom services as part of the provision of an energy service. See: TEXAS UTILITY CODE SEC 54.201-202

    7. August 2, 2007 Page 7 Miller & Van Eaton P.L.L.C Key State Law Issues UTILITY CODE 54.204 contains strong anti-discrimination provisions with respect to telecom service: access to RoW access to buildings pole attachment and conduit rates AND requires a uniform pole/conduit attachment rate LOCAL GOVT CODE 283.056 allows for police power regulation of telecom providers: “apply to all persons” competitively neutral and non-discriminatory UTILITY CODE 66.010 contains similar requirements for an entity holding a state video franchise

    8. August 2, 2007 Page 8 Miller & Van Eaton P.L.L.C Federal Law – Key Points Contains nothing that directly restricts localities from providing telecom services, cable services, or information services. BUT: Different rights and obligations apply depending on what services are provided; and how those are provided Generally telecom service and cable service providers have greatest regulatory obligations, and regulatory benefits

    9. August 2, 2007 Page 9 Miller & Van Eaton P.L.L.C Trade-offs: Info Services v. Telecom Services No state PUC or local regulation FCC is applying (or considering applying) CALEA 911 Other requirements No rights against “carriers” for Interconnection Non-discrimination Revenue sharing No 224 (pole attachment) rights of CATV or “Telecomm Service”

    10. August 2, 2007 Page 10 Miller & Van Eaton P.L.L.C Federal Law: Key Points Federal law imposes limitations on local authority to regulate, e.g. Sec 253 – non-discriminatory access to RoW (and other facilities?) for telecom providers Over-the-Air Reception Devices Rule (“OTARD”) Limitation on local authority to prevent interference in unlicensed spectrum

    11. August 2, 2007 Page 11 Miller & Van Eaton P.L.L.C Federal Law – Key Points AND Federal law may create new opportunities Public safety spectrum (generally) 700 MHz Lautenberg/Boucher bills (preempting states laws prohibiting municipalities from providing advanced telecom services)

    12. August 2, 2007 Page 12 Miller & Van Eaton P.L.L.C Applying the Rules: Wi-Fi Several different models for provision of Wi-Fi. Municipal Provisioning Free Service License Revenue-Generating License Anchor Tenant Franchise

    13. August 2, 2007 Page 13 Miller & Van Eaton P.L.L.C Examples of legal issues Regulation of Radio Frequency Interference Compliance with the Communications Assistance to Law Enforcement Act (“CALEA”) Pub. L. No. 103-414, 108 Stat. 427 (1994) (codified in 18 U.S.C. and 47 U.S.C.) Compliance with OTARD Management of the Public Rights-of-Way

    14. August 2, 2007 Page 14 Miller & Van Eaton P.L.L.C Comparing the Models Where municipality is providing service, it must comply with federal requirements like CALEA; but local ability to prevent frequency interference, control RoW use is maximized Where municipality is partnering to provide service, CALEA may not apply (depending on municipal role), but other issues are of greater concern.

    15. August 2, 2007 Page 15 Miller & Van Eaton P.L.L.C Example: OTARD Danger: if provider has exclusive use of space on pole, it may be entitled to provide services, and install facilities not contemplated by contracts Possible approach: carefully craft contract to avoid granting OTARD rights; seek waivers of OTARD rights

    16. August 2, 2007 Page 16 Miller & Van Eaton P.L.L.C Example: RoW Danger: If locality mixes RoW regulation with contract for services, it may find itself forced to extend the same benefits to other RoW users Approach: do not mix service concepts/ RoW regulation – or provide means for altering the contract if a problem arises

    17. August 2, 2007 Page 17 Miller & Van Eaton P.L.L.C Looking Beyond Wi-Fi Planning for a municipal system requires localities to decide WHAT services to provide TO WHOM the services should be provided WHAT technology will be used to deliver the services WHO will own facilities/provide services ALL these issues are driven by legal considerations, which impose different limitations/costs depending on choices made

    18. August 2, 2007 Page 18 Miller & Van Eaton P.L.L.C Looking Beyond Wi-Fi This field is rapidly changing, and there may be different ways to meet goals Important to retain flexibility, while focusing on what is required to meet current goals Required: coordinated, careful legal planning at every stage of the process

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