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Ms. Coralie A. Wilson January 10, 2003 Page 7 ability of federal law to preempt the provisions of the Franchise is expressly . recognized by the language of the Franchise itself, which addresses the validity of other provisions in the event that certain Franchise provisions are preempted by federal law.14 Thus, even if the Franchise contained language that expressly required the payment of franchise fees regardless of federal law (which, as explained below, it does not), such language would be preempted by the express provisions of the Communications Act, as well as the Supremacy Clause.15 .Nor can the Franchisee and the Commission .avoid the prohibition imposed by Section 622. by simply agreeing to allow the imposition of franchise fees on cable modem service revenues. As a federal court found, the cap on the. imposition of franchise fees imposed by Section -622 cannot be waived.16 This is because Section 622, while primarily created to protecf cable operators from the imposition of excessive fees by local governments,. also serves to protect subscribers from such fees, as it is they who inevitably bear the burden of such rates. We note that any attempt to collect franchise fees on cable modem service revenues would not only violate federal law, but could also result in subscriber lawsuits challenging the assessment and collection of such fees by the Franchisee, the Commission and its member cities;" because such an action would not involve the regulation of cable services (but rather intrastate information .services), protections from such actions provided under. Title VI would likely not apply. 1993); Birminaham Cable Communications. Inc. v. Citv of Birminaham, 1989 U.S. Dist. LEXIS 7475 (N.D. Ala. May 5, 1989). 14 See Franchise at § 13.4. 15 See also 15 Am. Jur. 2d CoNSTiTU'notvAL Law § 54 (in the case of a conflict between the regulations of a state body and the conflicting regulations of a federal agency or commission, "the former must yield to the latter, since the term `laws of the United States,' as used in the supremacy clause, encompasses both federal statutes and statutorily authorized federal agency regulations."). 16 See Cable TV Fund 14-A Ltd. v. Citv of Naperville, 1997 U.S. Dist. LEXIS 11511 at *86 ("the five percent cap on franchise fees provided in Section 542(b) of the Cable At may not be waived."). See also Report and Order in MM Docket No. 84-1296, 58 RR 2d (P & F) 1, 35 n. 91 (1985) ("neither a cable operator nor a franchising authority may waive mandatory sections of the Cable AcY'). " See, e.a., Bova v. Cox, 2002 WL 1575738 (W.D. Va. 2002). As you may be aware, this case involved a subscriber class action filed before the Declaratory Ruling, which challenged the collection of franchise fees on cable modem service revenues as a violation of Section 622 of the Communications Act. While the court eventually dismissed the- case on the basis that subscribers did not have a private cause of action under Section 622, it expressly recognized the intended benefit to consumers and did not expressly preclude similar actions under state law. See id. at *4 •