01-13-26 City Council Workshop Packet

Home Browse Search

NOVEMBER/DECEMBER 2024 / VOL. 65 NO. 6 / 7 Continued on page 8 Michael R. Bradley is a partner in the Municipal Telecommunications firm Bradley Werner, LLC. Mike has spent nearly his entire 30-plus year career representing local governments on a wide variety of telecommuni- cations and franchising issues. Mike successfully defended the right of cities to receive cable franchise fees in Oklahoma and also litigated in federal court whether revenues from the provision of internet service should be included in cable franchise fees. He is one of a handful of at- torneys in the country that has represented local government clients in the formal cable franchise renewal process. Mike and his firm represented municipal clients in all three FCC Section 621 cable franchising proceedings from 2006 to present, including the recent litigation before the Sixth Circuit. He has also filed in the FCC Digital Discrimination and Cable Pricing dockets. He has drafted and testified on communications legislation in multiple jurisdictions, including the Minnesota Equal Access to Broadband Act in 2024, and is a long-time officer, including past Chair, of the Minnesota State Bar Association’s Communications Law Section. Early in his career, he assisted the City of St. Paul in obtaining public funding for a new hockey arena and bringing the NHL back to the State of Hockey. Mike is a graduate of Hamline University School of Law (J.D.) and the University of Minnesota (B.A.) and is admitted to practice before multiple state and federal courts, including the United States Supreme Court. JANUARY/FEBRUARY 2025 / VOL. 66 NO. 1 / 7 it would not preempt franchising even if broadband was reclassified to a Title II telecommunications service.21 The order states: We decline requests to categorically preempt all state or local regulation affecting [broadband internet access service] in the absence of any specific determination that such regulation interferes with our exercise of federal regulatory authority. The [Com- munications] Act establishes a dual federal–state regulatory system in which the federal government and the states may exercise concurrent regula- tory authority over communications networks.22 Additionally, the FCC affirmed other roles typically included in franchises by local governments regardless of the federal reclassification of broadband, such as:23 • “[G]enerally policing such matters as fraud, taxation, and general commer- cial dealings.” • “[P]rotecting consumers from fraud, enforcing fair business practices, for example, in advertising and billing, and generally responding to consumer inquiries and complaints.” • State Consumer Protection Laws, such as the California Internet Consumer Protection and Network Neutrality Act of 2018. • Promoting Broadband Affordability Programs.24 Municipal Franchising Success Story Cities have a long history of pro- tecting citizens through franchising. Through cable franchising, for example, cities have ensured that their residents are served by the cable system over a reasonable period of time with the same quality of service and pricing.25 When necessary, municipal franchising authorities have required cable system upgrades, which resulted in superior broadband offerings compared to phone companies.26 Cable franchises also have customer service protections and provided for public benefits such as public, educational, and govern- mental (PEG) access channels. Local cable franchising has undeniably been effective in ensuring universal access, universal pricing, area-wide buildout, and upgrades.27 As local governments explained to the FCC recently:28 For decades, local governments have protected the public interest through franchises and other rights-of-way management tools.29 In the cable franchise context, local governments have required every cable operator to construct its cable system to serve everyone in the municipality, and, later, required system upgrades to ensure the cable system provided an appropriate level of service.30 Local governments have, as required in the 1984 Cable Act, prohibited cable operators from redlining lower in- come communities.31 They have also included important public benefits, such as public, educational and gov- ernment (PEG) access programming in local franchises to ensure access to local news, information, public meetings, high school sports and events, and more.32 National and regional organizations agree that municipalities should be a part of the solution to ensuring equal access to broadband. As the League of Minnesota Cities explained in its Digital Discrimination Comments: Local governments are in the best position to recognize and respond to the needs of their residents. It is simply not possible for the federal government to create a “one size fits all” plan that will ensure efficient ac- cess to broadband across the entire country or to prevent or eliminate digital discrimination.”33 The National League of Cities echoed those comments stating, “Local government, as the level of government closest to the consumer, is in the best position to identify potential or actual digital discrimination and should take a leading role in preventing and addressing it.”34 The effectiveness of franchising au- thority has been supported by the FCC in two recent orders. In its Digital Dis- crimination Order, the FCC adopted the recommendations of the Commu- nications Equity and Diversity Council (“CEDC”), which acknowledged the importance of local franchising. 35 The CEDC Recommendations and Best Practices recognized the long-standing efforts of local governments to promote nondiscriminatory access to communi- cations services through franchises and rights-of-way management.36