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Ms. Coralie A. Wilson January 10, 2003 Page 6 • light of this plain and clear statutory language, the FCC acknowledged that, because its Declarator~r Rufina expressly determined that cable modem service is not a "cable service" for purposes of the Cable Act, "revenue from cable modem service would not be included in the calculation of gross revenues from which the franchise fee ceiling is determined."'0 Thus, there can be no question that Section 622 of the Communications Act prohibits the Commission or its member cities from assessing franchise fees on cable modem service revenues. Significantly, the prohibition established by Section 622 is not limited to express "franchise fees" assessed as part of a Title VI franchise, but extends to any cable-specific fee or assessment on a cable operator's non-cable service revenues that a franchising authority may seek to impose. Specifically, Section 622 defines a "franchise fee" to include "any tax, fee, or assessment of any kind imposed by a franchising authority or other governmental entity on the cable operator or cable subscriber, or .both,. solely because of their status as such." Thus, irrespective of whether a fee is assessed by a local government acting as a "franchising authority" or as some other "governmental. entity", and irrespective of whether such fee is characterized as a "franchise fee" or an "information services fee", the assessment of such a fee on a cable operator's cable modem services remains prohibited by Section 622." Contrary to statements in the Notice, the provisions of Section 622 are binding • upon Franchisee, the Commission and the member cities, irrespective of any language in the Franchise to the contrary. The Communications Act expressly preempts and supersedes "any provision of law of any state, political subdivision, or agency thereof, or franchising authority, or any provision of any franchise granted by such authority, which is inconsistent with this Act."12 Federal courts have consistently confirmed that the Section 622. prohibition preempts inconsistent franchise language or local franchising authority requirements.13 The 10 Declaratory Ruling at ¶105. It is noteworthy that the term "franchise fee" does not include a "tax, fee or assessment of general applicability," so long as it is not "unduly discriminatory against cable operators or subscribers." 47 U.S.C. § 542(g)(2)(A). Thus, the Commission or the member cities could impose a general tax or fee on cable modem service revenues, ~so long as that fee was generally applied to all other providers of similar Internet access services or information services. However, in addition.to being beyond the authority of the Commission and its member cities under applicable law, .any such tax, fee or assessment may be separately prohibited under the Internet Tax Freedom Act, which precludes the imposition of new taxes on Internet access. See Pub.L. No. 105-277, § 1100 et seq., 112 Stat. 2681 (1998). 12 47 U.S.C. § 556(c). 13 See Cable TV Fund 14-A Ltd. v. City of Naperville, 1997 U.S. Dist. LEXIS 11511 (N.D. • III. July 29, 1997); Time Warner Entm't Co. v. Briggs, 1993 U.S. Dist. LEXIS 1196, at "'18 (D.Mass. Jan. 14, 1993); Robin Cable Svs. L.P. v. City of Sierra Vista, 842 F.Supp. 380 (D. Ariz.