International Municipal Lawyers Association - Local Government Blog

DIGITAL TRANSITION’S LEGAL HEADACHES FOR LOCAL GOVERNMENTS

November 26, 2008
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Posted By: Joesph Van Eaton, Partner, Miller & Van Eaton, PLLC

After February 17, 2009, full-power television broadcast stations must transmit only digital signals and may no longer transmit analog signals. 47 U.S.C. §§ 309(j)(14) and 337(e). Cable operators, however, are not bound by this statutory deadline, and many plan to convert the broadcast signals back to analog and deliver them to subscribers. This has several advantages for the cable industry: it means that cable operators can advise consumers that, as long as they subscriber to cable, they can receive service without being required to obtain a digital converter box. Several are doing just that.

However, many cable operators face another problem: they do not have enough capacity to respond to anticipated customer demand for Internet, phone service and video services. So at the same time some operators are trying to maintain a market advantage by delivering some channels in an analog format, they are trying to free up bandwidth by converting channels to a digital format (analog channels require more bandwidth to deliver).

While localities may find that many consumers are unprepared for the broadcast digital transition, the real legal headaches for local governments are arising as cable operators go through their own, partial digital conversion (caution: in some places all channels are being provided in a digital format, or all subscribers already are required to have converters. In those places, the changes described below have little effect):

– Some operators are converting public, educational and government (“PEG”) channels to a digital format. This means that the channels cannot be received without a converter box, or without a digital TV. A box is required for every set a subscriber wishes to use to view the channels. Subscribers are already paying for the PEG channels through rates, and often pay a fee to support the PEG channels. The result of the conversion: basic local information may be less accessible, or cost more to receive.

–Some operators are converting some commercial channels on the lowest tiers to a digital format. In communities that can still regulate cable rates this is significant, because the rate an operator is permitted to charge for a tier of service depends on the number of channels being delivered to subscribers. The legal question: should channels be counted as “delivered” if a subscriber must obtain special equipment to view them?

– There are reports that some channels are being converted to a digital format without any notice being given to subscribers. Those channels effectively “disappear” on analog sets. What rights does a consumer have to notice before that happens? Note that from a marketing standpoint, if an operator had to clearly notify subscribers as to plans for digitizing channels, some operators might lose marketing points that they are trying to capitalize upon.

The changes have already resulted in legal actions – with good results for many localities. A district court in Michigan issued a temporary restraining order and preliminary injunction that stopped Comcast from changing PEG channels to a digital format. The court recently denied in large part a Comcast motion to dismiss the complaint that had led to the injunction. In that same order, the court indicated that it would refer certain questions to the FCC for determination – including questions as to whether conversion of the PEG channels to a digital format violates federal laws and regulations. That may occur soon. The FCC has already issued one decision imposing penalties on Cox for delivering some channels in a switched digital video format. In re Cox Communications, Inc., Fairfax County, Virginia Cable System, DA 08-2299, EB-07-SE-351 (October 15, 2008); see also Public, Educational, and Governmental (PEG) Access to Cable Television Before the House Subcomm. on Financial Services and General Government, September 17, 2008 (statement of Monica Shah Desai, Chief of the Media Bureau Federal Communications Commission).

The efforts by incumbent operators like Comcast to shift PEG channels to a digital format, while delivering other channels in an analog format is of great concern to many in the municipal and PEG community. However, as troubling, if not more so, is the approach to PEG by AT&T on its U-Verse system. AT&T delivers video using Internet Protocol. Despite the difference in the delivery technology, most commercial channels are delivered in a manner which allows them to be selected and viewed in much the same way that commercial channels are viewed on traditional cable systems.

PEG access programming is not delivered via a channel. It is delivered via what AT&T calls its “PEG application.” When one tunes a converter to “99,” the PEG application starts. After a significant delay, the viewer is presented with a menu that lists all PEG channels for every community within the designated market area served by its system. In some areas, the DMA is large enough that the list could include dozens of channels. The viewer then must scroll through the list, and select a feed: what the viewer then receives is a streaming video feed that many claim is inferior in quality and functionality to regular commercial video channels carried on the system. Among other things, the AT&T PEG application does not support closed captioning services, or other basic functions that are provided for commercial channels AT&T offers for its profit. The California Public Utility Commission’s Division of Ratepayer Advocates issued a consumer advisory and posted a video demonstration of the AT&T system, links to which can be found here.

What is already clear is that local governments will have a significant interest in ensuring that these proceedings result in rules that protect local interests and consumers. The issues surrounding the PEG channel changes and the digital conversion on cable systems will be played out in the courts and before the FCC – and likely very soon. It may require concerted, joint actions by localities to prevail.


Saving the Planet, Saving Species

November 25, 2008
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Posted By: Chuck Thompson, Executive Director/General Counsel, IMLA

While riding the Washington Metro, I noticed an ad that seeks to garner support from the denizens of the bowels of our nation’s capital to press for limits on overfishing.  According to a number of experts, overfishing is a significant environmental and ecological problem for our planet.  Google the term and you’ll get an idea of you significant and pervasive the problem is.  For example, check out: http://overfishing.org .

As I thought about the ad, I seemed to recall a recent article I had read about the problem as applied to fishing fleets in the north east and as applied to cod.  I can’t remember all of the details, but the gist of the story hinted at the likelihood that whole fisheries were lost.  Of course, one of the more difficult problems in dealing with overfishing as compared with noticing that between 1860 and 1880 almost all of the buffalo in the United States were eliminated by over-hunting rests in the murky deep that hides the extent of the overfishing.  People noticed the decline of the buffalo – of course, that didn’t help much; but, people cruising the seas don’t really notice how many fewer fish of each species are swimming along with them.

With the development of the Internet and computer access, should we consider using the technology to organize, identify and link consumer demand with development of supply.  For example, a consumer could order fish, beef, lamb, or chicken through a computer linked to suppliers who would be able to coordinate the demand with supply and reduce over-supply.  Even produce could be coordinated in such a way that deliveries could be coordinated and over-supply from production diverted to areas of the country or world where the demand could be met with an appropriate supply, or diverted to canning. 

With some planning, even restaurants might be able to develop a better idea of how to supply their customers’ demands by offering discounted menu options if ordered in advance.  Room for spontaneity could still exist, but for those who aren’t that risky, a meal ordered in advance would reduce the waste from restaurant over-ordering.  For the most part, well run restaurants are the least of the problem, as they already do a pretty good job of ordering based on their need and experience.  On the other hand, many groceries seem to thrive on impulse buying.  They too have an incentive to limit waste through appropriate buying practices and close monitoring of buying habits, yet finding ways to reduce their exposure to over-ordering through Internet grocery shopping might reduce costs and waste and provide other cost savings for shoppers and the grocers.  Similarly, well coordinated food shopping with providing the supply could divert instances of over-supply to areas of the world that are under served.

Happy Thanksgiving!


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Wind Power Whac-a-Mole™ Wrangling

November 24, 2008
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Posted By: Dwight Merriam, Partner, Robinson & Cole LLP

So, who controls the wind?  Perhaps it is the Greek wind gods, the Anemoi (Boreas, Notus, Zephyrus, and Eurus) or the Roman god, Venti.  In Washington State, it looks like it is Governor Christine Gregoire.

With wind power capable of producing electricity at rates quite comparable with fossil fuel and nuclear, but maybe not hydro, and federal and state economic incentives, the growth has been substantial.  Last year, production grew 45% and over 1% of our power now comes from the wind.  By way of comparison, nuclear provides 20%.

With wind turbines popping up across the landscape, local governments have started playing a game of Whac-a-Mole™ — doing what hey can to regulate the installation of wind turbines.  Often, local governments lump all types together: from backyard systems of 10 kWh or less, to mid-sized systems such as governments themselves might install to power local operations including schools and waste water treatment; to wind farms, the largest of which in the United States may be the Horse Hollow Wind Energy Center, in Taylor County, Texas, with 421 wind turbines and a capacity of 735 megawatts.

If you want to read just one article on the subject, I suggest Professor Ron Rosenberg’s recent contribution.  He spoke on the subject at IMLA’s Nashville conference.  He and I attended to graduate planning school together.  He knows better than most what is going on.  See Ronald H. Rosenberg, “Diversifying America’s Energy Future: The Future of Renewable Wind Power,” Virginia Environmental Law Journal, Vol. 26, p. 505 (2008) available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1152405.  He suggests that decision making might be vested in the states with state consideration of local policies. At 543.  He describes the law as “evolving.”

I have a forthcoming article in the Vermont Journal of Environmental Law on backyard wind turbines in which I discuss permissive local regulation for small systems.  The state may not have any real interest in the small systems.

On November 20th the State of Washington Supreme Court handed down a decision in Residents Opposed to Kittitas Turbines v. State Energy Facility Site Evaluation Council, available at http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=813329MAJ.  The Washington State Energy Facilities Site Locations Act governs the relocation, construction, and operating conditions of energy facilities in Washington.  The law creates a process for determining energy facility locations across the state and requires site certification, a binding agreement between the applicant and the State, and conditions of approval that will assure the applicant’s compliance with regulations related to the construction and operation of the facility. 

The Energy Facility Site Evaluation Council is a multiagency body which administers the site certification process.  The county where a proposed facility might be located appoints a representative to the Council for consideration of the application.  The Council holds a hearing on a proposed facility to determine if it is consistent with the county land use plans and zoning laws.

Horizon Wind Energy proposed 121 wind turbine towers in Kittitas County.  The County had adopted a Wind Farm Resource Overlay Zone ordinance.  At the hearing the Council and the County agreed the application was inconsistent with the County ordinance.  There was lots of procedural wrangling and going back and forth.  The decision runs 59 pages, so you’ll have to read it if you want to know all the machinations.

The “bottom line” – and isn’t the world of the blogosphere all about the sound-bite bottom line?  – is that the Energy Facilities Site Locations Act does not violate the state’s Grwoth Management Act in preempting the County’s land use and zoning laws.  There was substantial evidence to support the preemption, adequate mitigation of visual impacts and no violation of the appearance of fairness doctrine.

As Seneca said: “If a man does not know what port he is steering for, no wind is favorable to him.”  The first step in an orderly process of promoting wind power development is to decide who decides….


Curitaba, Brazil and Transportation Ideas

November 21, 2008
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Last week, we posted a video of a roundtable discussion on local/regional sustainability. This week, we bring you another video, but moving past the United States/Canada and into the international realm. The City of Curitaba (pop. 1.8 million) has an extremely well planned public transportation system utilized by over 80% of its citizens. The speaker in the video is Jamie Lerner, an urban planner/architect who became the mayor of Curitaba, and ultimately the governor of the state of Parana in Brazil. Jamie Lerner speaks about his experiences in urban planning, and focuses on Curitaba’s unique rapid bus transit system. The video is from TED.com.


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Not-so-Instant Replay at Council Meetings

November 19, 2008
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Posted by: Warren Kraft, Assistant City Attorney/’HR Director, West Bend, Wisconsin

The use of the “proper” rules of parliamentary procedure is a frequent topic of the Municipal Attorneys List-Serv, and occasionally its Wisconsin counterpart.  We debate the theory behind Roberts’ Rules of Order and whether the legal counselor should attempt to angle the legislative body toward a “more appropriate” methodology.

Additionally, many jurisdictions televise the meetings of their local legislative bodies, oftentimes video-taped for replay on the public access channels.

These two apparently disparate topics melded together in recent weeks in a community north of Milwaukee along the western shore of Lake Michigan.  As the Milwaukee Journal-Sentinel reported in its Nov. 9 editions:

Port Washington Council uses instant replay

By Dan Benson of the Journal Sentinel
http://www.jsonline.com/news/ozwash/34183534.html

Posted: Nov. 9, 2008

Port Washington – Nowadays, it’s commonplace that village board and common council meetings are videotaped and broadcast over local cable systems.

But rarely, if ever, have officials gone to the tape to make sure they got a vote right.

But that’s exactly what the Port Washington Common Council did.

Why?

“We zigged when we should have zagged,” City Attorney Eric Eberhardt said.

A frenzied debate to allow boats from the city’s marina to be stored on a city-owned parking lot was at the center of the recent replay debate. The council voted 4-3 to approve the proposal. Doing so would generate up to $4,000 in revenue. But downtown businesses opposed the idea, saying it would be a blight on their picturesque lakefront.

Opponent Ald. Allan Haacke went to Eberhardt after the vote and said the vote had been made inappropriately, violating Robert’s Rules of Order, which is universally accepted as scripture when it comes to running an orderly public meeting.

Like any good referee wanting to get a call right, Eberhardt went to the tape.

And here’s what it showed: Ald. Burt Babcock made a motion to call the question to stop the debate and force a vote. At the same time, Haacke moved to table the issue, which also would stop the debate but postpone any action to a future meeting.

Mayor Scott Huebner’s “head was kind of on a swivel” reacting to the competing motions and other discussion that was going on, “and looked to me for guidance,” Eberhardt said.

Relying on his memory of Robert’s Rules, Eberhardt told Huebner that the motion to call the question should take precedence over all other motions.

So instead of calling for a second to Babcock’s motion to call the question, or even a vote on the motion, the tape showed, Huebner called for a vote on the underlying issue of whether to store boats in the city parking lot. Technically, Eberhardt also found, a motion to table takes precedence over all other motions, with calling the question the next in line.

“The real deficiency was that neither of those motions was seconded,” Eberhardt said.

Eberhardt notified the council of the error, and on Wednesday, aldermen voted to rescind the Oct. 21 vote, then re-voted, this time defeating the proposal 4-3. And, adding more drama, between the first and second votes, the city’s Business Improvement District voted to oppose the measure. That swayed one alderman to switch sides.

What happened in Port Washington is a first for Ed Huck, executive director of the Madison-based Wisconsin Alliance of Cities, and “is demonstrative of new technology serving the public interest.”

Videotaping or audiotaping public meetings is not required by state law, but local governments have chosen to do so, often at great expense, to better serve the public, Huck said.

“Here is a prime example,” Huck said. “All of a sudden, I have this picture of the council president in a striped shirt with his head under a hood, looking at a TV monitor.”

If readers of this blog have not personally experienced this on-the-job frenzy, we surely know of our colleagues who have had to reach into the recesses of their minds and have a ready answer.  Many times, we are tempted to ask for a brief recess to research the question but forgo that opportunity as the legislative consideration may increase in intensity.  During post-meeting reviews, it is all too easy to offer critiques of how we should or should not have handled an issue.

So, what do we make of Eric’s experience? 

First and foremost is the municipal attorney’s constant commitment to “get it right.”  On ocassion, it might not be the first time and turning to the tape can help fix the situation.  Oftentimes, in my former position, the city clerk and I would exchange puzzled glances about what the council just said or did, and we would “check the tape” the next day.  Before cable technology swept over our community, we always had old-fashion analog cassette tape to review.

During other debates, a council member would offer a motion in highly convoluted language, then glance at the city staff dais to ask, “Did you get that?”  Many times, we would seek clarification so we understood the concept, the principal effect to help the member’s colleagues also understand what was proferred, and then promise to word it correctly.  “Check the tape” before inserting the text into the draft minutes were the next day’s objective.  A level of trust and credibility is necessary for this to occur.

A secondly, and almost equally important lesson, is the willingness to listen to the “next-day quarterbacks” who themselves might be befuddled by what occurred the night before.  I do not recall any of my professors endorsing use of the phrase, “We zigged when we should have zagged.”  We know about colleagues who interpret the call for “further review” as a threat to one’s integrity.  There are some quarters where an admission is not viewed as weakness, rather interpreted as enlightenment.  Well, maybe just the one time …

Most of us can read between the story’s lines and envison a rather heated debate on the Port Washington City Council floor.  In an honest moment, we might even recall a similar situation, or perhaps, situatons, where we ourselves got caught up in the debate and found ourselves stumbling when the “call” came in our direction.  At its organizational meeting, my former Council began discussing an item, though related, was not specifically listed on the agenda and as they included me more in the conversation, I found myself more detached from my “watchdog” role.  The city clerk turned and whispered that this was not on the docket.  It was enough to prompt me to interject that this conversation needed to be deferred until it could be properly posted.  And, later in the afternoon, I had to explain myself to the city manager who was absent from that noon hour meeting.

When the end of the day comes, our role as legal advisor is based on credibility.  “A frenzied debate” occurred, a parliamentary mistake occurred, and the city attorney responded promptly to “further review” and to make appropriate reports and recommendations.  Isn’t it a pleasant read when the result and news report are not heavily weighted with a gotch-ya?

And, keep in your arsenal a now-acceptable legal concept for mid-course corrections: “We zigged when we should have zagged.”


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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.

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