November 1, 2006

Dear Friend of Access in Texas,

November will be an important month for public access television in Texas. Here’s why.

If in the November election Democrats win one or both houses in Congress, Republicans will likely make a more vigorous last-ditch effort to push through pending legislation in the “lame duck” session beginning November 9.

Proposed federal legislation (H.R. 5252) that would nationalize video franchising and reduce funds for Public, Educational, and Government (PEG) access passed the House in June but has not been voted on by the Senate. Commerce Committee Chair, Senator Stephens (R-Alaska), has failed to get 60 votes needed to stop an expected filibuster.

The odds of H.R. 5252 passing in the “lame duck” session, however, are not great. Washington insiders with the Alliance for Community Media (ACM) give it a “5 to 15 percent chance,” yet also suggest that it’s anyone’s guess as to what will happen.

We should be concerned even if H.R. 5252 fails to reach the Senate floor for a vote. Similar legislation could be introduced in the next Congress, but more immediate is a possibility the FCC, through its rulemaking, could try to nationalize video franchising.

According to Steve Traylor of the National Association of Telecommunications Advisors (NATOA) and attorney Jim Horwood of Speigel & McDiarmid, it is rumored that the FCC rules for national video franchising are already written and ready to be implemented in the event that federal legislation fails – as it appears it will.

However, Traylor and Horwood also said they believe that the FCC does not have the legal authority to administratively authorize national video franchising and anticipate that such a move would result in legal challenges.

In Texas, the November election results will not likely change the composition of Texas House and Senate committees important for expected telecommunications legislation. At this point, we can expect “clean-up” legislation to be introduced that would change some of the provisions of SB 5, Texas’ telecommunications law that passed in 2005.

We should anticipate that the Texas Cable & Telecommunications Association (TCTA) will lobby for language that allows incumbent cable operators with existing franchise agreements to “abrogate” (cancel) the agreements before the natural expiration dates.

The TCTA filed suit immediately after the passage of SB 5 in 2005 claiming the law was unfair because new entrants into video franchising (AT&T and Verizon) could obtain state certificates of franchise authority from the Public Utilities Commission, while the existing municipal franchises for incumbent cable operators were grandfathered.

In September 2006, U.S. District Judge Lee Yeakel dismissed TCTA’s suit. Because of this, because federal legislation is in limbo and because FCC rulemaking is not certain, it is highly likely that the TCTA and related lobbyists will push for legislative “relief” from existing franchise agreements.

The City of Austin franchise agreement with Time Warner Cable is set to expire in 2011. Time Warner Cable Austin Division Vice President for Public Affairs, Lidia Agraz, told the Austin Business Journal in September that the Austin Division wants a statewide franchise agreement. She said that even if Congress doesn’t pass federal legislation, she is hopeful that state legislators will provide some relief for Time Warner next year.

To help with that, the Friends of Time Warner PAC has already made significant campaign contributions to key members of the Texas State Senate Business & Commerce Committee. In September, the PAC contributed $10,000 to committee chair Sen. Troy Fraser (R) and $5,000 to committee member Sen. Eddie Lucio (D). The Business & Commerce Committee is the one that drafted SB 5.

In summary, the best analysis at this point is that:

- Federal legislation (H.R. 5252) will probably fail in the “lame duck” session
- On the other hand, what happens in Congress in November is unpredictable
- If H.R. 5252 fails, the FCC, via rulemaking, could nationalize video franchising
- But if the FCC nationalizes video franchising, it will likely face legal challenges
- The cable industry seeks Texas legislation to cancel municipal agreements

So what can and should we do?

In Texas our focus now should be on the Texas legislature that convenes in just over two months on January 9, 2007. But we ought not wait. Bills for the 80th Legislature can be pre-filed as early as November 13. We should watch for “clean-up” language that would make it easier for incumbent cable service providers to “abrogate” existing municipal franchise agreements. Recently passed California law (AB 2987), for example, allows cable operators to terminate municipal franchise agreements upon “notification” of intent by a state franchisee to initiate service in all or part of the operators’ jurisdiction.

We need to frame messages for legislators to convince them that the “relief” that TCTA seeks from existing franchise obligations would do harm to access television. Further, we need to convince legislators of access television’s value.

The first legislators to address consist of the members of the House’s Regulated Industries committee and members of the Senate’s Business & Commerce committee. These two committees will shape any “clean-up” legislation. The second set consists of the Texas Representatives and Senators from the districts where there is access television in Austin, Dallas, Houston, San Antonio, and elsewhere. These legislators may be among our greatest allies.

The other thing to watch for toward the end of November is a follow-up report to SB 5. It is a joint interim study due before the 80th Legislature that will focus on “the transition from local franchise authority to state-issued authority” and the “continuation of public, educational, and governmental access channels.”

PACT will continue to participate in biweekly conference calls with the Alliance for Community Media about both the federal and state issues.

Stefan Wray
Communications Director
Public Access Community Television (PACT)
Austin, Texas
www.pactaustin.org