[IP] more on Summary for Congress of proposed NN Act Proposal

[David Farber <dave@farber.net>]

Begin forwarded message:

From: Chris Savage <chris.savage@crblaw.com>
Date: June 22, 2006 9:36:26 AM EDT
To: dave@farber.net
Subject: RE: [IP] more on Summary for Congress of proposed NN Act  
Proposal

-----Original Message-----
From: David Farber [mailto:dave@farber.net]
Sent: Wednesday, June 21, 2006 10:15 AM
To: ip@v2.listbox.com
Subject: [IP] more on Summary for Congress of proposed NN Act Proposal

Dave,

Gerry has some legal "technical" errors below, perhaps worth clearing
up:

From: Gerry Faulhaber <gerry-faulhaber@mchsi.com>
Date: June 21, 2006 10:07:41 AM EDT
To: dave@farber.net
Cc: faulhaber@wharton.upenn.edu
Subject: Re: [IP] Summary for Congress of proposed NN Act Proposal

<snip>

> > I also wholeheartedly agree with Dana about making the market
competitive as the only true solution to this.  However, he seems to
think that Congress must act to "take away their monopoly right of
way."  In fact, Congress already did; the Telecom Act of 96 removed
all local monopoly franchises, period.  Even further back, there are
FCC Pole Attachment rules requiring telephone companies to share
their poles at specified rates.  Everything is actually in place for
competitors to enter.<<

Gerry is correct that Congress took away literal monopoly franchises.
It did so with cable in the '92 Cable Act and did so with telecom in the
'96 Telecom Act.  What Dana was talking about, I think, was slightly
more subtle, which is barriers to entry created by local governments
putting obstacles in the path of would-be facilities-based entrants.
Section 253(c) (added by the '96 Act) says that states and localities
retain the authority to "manage" the rights-of-way and to require
compensation for its use, as long as they act in a "competitively
neutral and non-discriminatory" way.  But there has been a fair amount
of litigation since '96 over whether states and localities have been
sufficiently open about this.  Dana B. is, I think, suggesting that if
localities were forced to be more accommodating, we'd get more
facilities-based competition.

As to poles, the main supplier of poles is not the ILEC, it is normally
the power company.  The new pole rules (Section 224, added by the '96
Act) do apply to power companies (and to telecom providers), but not
those that are either cooperatively owned or municipally owned.  That
has created some friction, to say the least.

Chris S.

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