12-14-2015 Council Packet - Laserfiche WebLink

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overbuild competition. In those situations, average monthly cable rates were 20.6 percent lower than the average for markets deemed noncompetitive. Id. E. FCC 621 Order - Federal Preemption of Unreasonable Build -Out Mandates In the 621 Order, the FCC declared "it is unlawful for LFAs to refuse to grant a competitive franchise on the basis of unreasonable build -out mandates."13 The 621 Order does not expressly prohibit full municipal build -out requirements, if they are reasonable (which will depend on local circumstances). Although the FCC did not definitively define what constitutes an "unreasonable build -out" mandate, it did list examples of both reasonable and unreasonable build -out requirements. a. Examples of Unreasonable Build -Out Requirements. The FCC's examples of unreasonable build -out mandates include: requiring a new entrant to serve everyone in a franchise area before it has begun to serve anyone; requiring facilities -based entrants, such as incumbent LECs, to build out beyond the footprint of their existing facilities before they have even begun to provide cable service; requiring more of a new entrant than an incumbent cable operator by, for instance, requiring the new entrant to build out its facilities in a shorter period of time than that afforded to the incumbent; requiring the new entrant to build out and provide service to areas of lower density than those that the incumbent cable operator is required to build out to and serve; requiring a new entrant to build out to and service buildings or developments to which the entrant cannot obtain access on reasonable terms or which cannot be reached using standard technologies; and requiring a new entrant to build out to and provide service to areas where it cannot obtain reasonable access to and use of public rights-of-way.14 b. Examples of Reasonable Build -Out Requirements. The FCC notes that it would seem reasonable for a local franchising authority to consider benchmarks requiring the new entrant to increase its build -out after a reasonable time, taking into account the new entrant's market success.15 The FCC also opined that it would seem reasonable to establish build -out requirements based on a new entrant's market penetration.16 13 621 Order at ¶ 89. 14 Id. at ¶¶ 89-90. 15 Id. at ¶ 89. 16 Id. 8