Best Best & Krieger News Feed

The Courts, the Hill and the FCC - A Year in Review and Setting the Stage for 2017

12 Dec 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Gail Karish will participate in a live 60-minute webinar entitled "The Courts, the Hill and the FCC - A Year in Review and Setting the Stage for 2017." The panel of experts will assess how 2016 affected policy and practice on key communications issues and will provide their views of what may be coming in 2017 - and how local governments can prepare.

When
Monday, Dec. 12
11 a.m. - Noon (PST) / 2 - 3 p.m. (EST)

For more information or to register, click here.

Closed Captioning for PEG and Social Media

10 Nov 2016 00:00:00 -0800

Best Best & Krieger LLP Of Counsel Christy Marie Lopez will present at SCAN NATOA's Chapter Meeting.

After holding a Roundtable Discussion of Closed Captioning for Public Access and Governmental Programming last year, the FCC recently adopted changes to its rules for closed captioning. This SCAN program will discuss the new rules and how they apply to government access channels. In addition, changes in technology have created different ways that captioning can technically be created and distributed. An overview of the options, the equipment and staff required, along with the pros and cons of the different options, will be presented. As local governments work toward providing accessibility to all of the members of their communities, come learn what the options are for compliance with the new rules.

When
Thursday, Nov. 10
9:45 - 11:30 a.m.

Where
Harold E. Hofmann Community Center
2nd Floor Meeting Room
14700 Burin Ave.
Lawndale, CA 90260

For more information or to register, click here.

Right of Way Control & Compensation

17 Oct 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Gerry Lederer will speak at an eNATOA Webinar. With a growing percentage of cable subscribers dropping traditional video services, but keeping Internet services, it is predicted that franchise fees will be on the decline all the while carriers are generating more revenue from their facilities located in the public rights of way. This session will examine what options are available to local communities to receive fair compensation for the use of public land in the face of changing definitions and uses of communications services.

When
Monday, Oct. 17
11 a.m. - Noon (PDT) / 2 - 3 p.m. (EDT)

For more information or to register, click here.

LCC Annual Conference

05 Oct 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 League of California Cities’ Annual Conference in Long Beach, Calif.

BB&K Speakers

Ruben Duran: “Understanding Public Service Ethics Laws and Principles (AB 1234 Training)”
Wednesday, Oct. 5
9 - 11 a.m.

Alisha Winterswyk: “Complying with CEQA, Brown Act, and Other Public Noticing Requirements”
Thursday, Oct. 6
8 - 9:30 a.m.

Ryan Baron: “Energy Reliability: Understanding the Natural Gas and Electricity Nexus”
Thursday, Oct. 6
Noon

Gail Karish and Christy Marie Lopez: “The Advance of Wireless Infrastructure”
Thursday, Oct. 6
4:15 - 5:30 p.m.

Isabel Safie and Katrina Veldkamp: “Reducing Pension and OPEB Costs”
Thursday, Oct. 6
4:15 - 5:30 p.m.

Jordan Ferguson: “What Municipalities Can Do About the Coming Drone-pocalypse”
Friday, Oct. 7
10:30 - 11:45 a.m.

When
Wednesday, Oct. 5 - Friday, Oct. 7

Where
Long Beach Convention Center
300 E Ocean Blvd
Long Beach, CA 90802

For more information or to register, click here.

IMLA’s 81st Annual Conference

28 Sep 2016 00:00:00 -0800

Join Best Best & Krieger LLP at IMLA’s 81st Annual Conference in San Diego, Calif.

BB&K Speakers

Greg Rodriguez and Steven DeBaun: "Autonomous Cars & the Future of Transportation: Not a Horse and Buggy, but Not Quite the Starship Enterprise…Yet"
Thursday, Sept. 29
10:45 - 11:45 a.m.

Shawn Hagerty (Tour Guide): "Code Enforcement & Land Use Tour"
Thursday, Sept. 29
2 p.m.

Andre Monette (Speaker) and Shawn Hagerty (Moderator): “The Safe Drinking Water Act and the Nation’s Aging Water Infrastructure & Liability for Lead Contamination of Water Supplies - Is It Covered by Insurance?”
Friday, Sept. 30
12:10 - 1:10 p.m.

Gene Tanaka: “Health and Environment Section Meeting”
Friday, Sept. 30
2:40 - 3:40 p.m.

Greg Rodriguez and Steven DeBaun (Leading Table Discussion): "WONK Breakfast"
Saturday, Oct. 1
7:30 - 8:30 a.m.

Gail Karish and Gerry Lederer (Speakers), Joe Van Eaton (Moderator): “Telecommunications - New Challenges for Local Counsel in a Broadband World: Why Public Safety, Economic Development, Planning and Zoning and Elected Officials Will Be Knocking On Your Door”
Saturday, Oct. 1
9 - 10:30 a.m.

When
Wednesday, Sept. 28 - Sunday, Oct. 2

Where
Hilton San Diego Bayfront
1 Park Blvd.
San Diego, CA 92101

For more information or to register, click here.

Regulation of Antennas In Rights-of-Way Based on Aesthetic Concerns Upheld

28 Sep 2016 00:00:00 -0800

Beauty is in the eye of the regulator…at least, according to the First District Court of Appeal. Earlier this month, the court upheld portions of a City and County of San Francisco ordinance regulating telecommunications antennas near the public right-of-way based on aesthetic concerns.

In T-Mobile West LLC v. City and County of San Francisco, the court explained that the City’s authority to regulate the installation of telecommunications equipment near public roads allows the City to consider whether the equipment would “diminish the City’s beauty.”

While the court is interpreting California law, it may have broader implications. The court was interpreting the scope of City police powers under a statute that permits telephone companies, including providers of wireless telecommunications services, to place facilities in rights-of-way subject to local time, place and manner restrictions. Many other states have laws that are similar, and others have statutes that are more protective of local authority over telephone companies, or that do not apply to providers of wireless facilities. Moreover T-Mobile raised discrimination claims that may be similar to claims that are being raised by other companies in other states.

California’s Public Utility Code allows telephone companies to construct and maintain telecommunication antennas along public roads in such a manner as not to “incommode” the public use of the road. A 1995 amendment to the Code states local government may “exercise reasonable control as to the time, place, and manner in which roads, highways, and waterways are accessed,” but to be reasonable, that control must, at a minimum, be applied to all entities in an equivalent manner.

In 2011, San Francisco adopted an ordinance requiring a site-specific permit before the installation of wireless equipment in the rights-of-way. The ordinance was intended, in part, “to prevent telecommunications providers from installing wireless antennas and associated equipment in the City’s public right-of-way either in manners or in locations that will diminish the City’s beauty.” The ordinance subjected proposed wireless facilities – but not wireline facilities – to different degrees of scrutiny based on the size of the wireless facilities proposed.

The plaintiffs brought a challenge arguing that local authority to regulate use of the rights-of-way did not permit it to control placement based on aesthetics and, because the ordinance applied only to wireless facilities, it violated the equivalence provisions of the Code. The appellate court rejected both claims.

Citing a U.S. Ninth Circuit Court of Appeals decision from 2009, and focusing on the term “incommode,” the court explained that regulation of the use of the road was not limited to preventing physical obstructions and may include “social, expressive and aesthetic functions.” (Sprint PCS Assets v. City of Palos Verdes Estates.) The court concluded that state law reserves to local government the police power to regulate against inconvenience of public use, a power that is “broad enough to allow discretionary aesthetics-based regulation.”

Turning to the discrimination claim, the court noted that the wireless facilities were “‘generally similar in size and appearance’ to equipment installed by ‘landline’ telephone corporations, cable television operators, and PG&E.” However, the court ruled that the duty to provide “equivalent access” merely meant that the City must apply similar rules in regulating the temporary disruption of the right-of-way associated with construction or maintenance, and did not require the City to regulate the permanent impacts associated with wireless and wireline equipment identically.

The challenge was a state law facial challenge – meaning that plaintiffs did not challenge the denial of an application to install facilities at any particular location. If such challenges are raised, providers can be expected to claim that a denial violates the federal law provisions prohibiting or effectively prohibiting the provision of personal wireless services. It is quite possible the case will be taken to the California Supreme Court. However, for now, the case provides support for local regulation of wireless aesthetics in California, and in states with similar laws, or laws that preserve greater authority over wireless facilities.

For more information regarding this opinion, please contact one of the attorney authors of this Legal Alert listed at the right in the firm’s Municipal or Telecommunications groups, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

NATOA 2016 Annual Conference

19 Sep 2016 00:00:00 -0800

Join Best Best & Krieger LLP at the 2016 National Association of Telecommunications Officers and Advisors Conference in Austin, Texas.

BB&K Speakers
Joe Van Eaton: "Ask The Lawyers"
Tuesday, Sept. 20
4:15 - 5:30 p.m.

Gail Karish: “75 Answers in 75 Minutes”
Wednesday, Sept. 21
9 - 10:15 a.m.

Gerard Lavery Lederer: “Telecom Update 2016 -- A Critical Look at Federal, State and Local Regulatory, Legislative and Judicial Developments”
Thursday, Sept. 22
10:45 a.m. - Noon

When
Monday, Sept. 19 - Thursday, Sept. 22

Where
Sheraton Austin Hotel at the Capitol
Austin, TX

For more information or to register, click here.

Cell and Wireless Tower Law

09 Sep 2016 00:00:00 -0800

Best Best & Krieger LLP partners Joe Van Eaton and Gerry Lederer will present at a live video webcast on "Cell and Wireless Tower Law" through the National Business Institute.

Joe and Gerry will answer common questions and concerns in this fundamental legal course regarding the land use, zoning and leasing of cell phone towers.

When
Friday, Sept. 9
10 am - 5 pm (EDT)
7 am - 2 pm (PDT)

For more information or to register, click here.

New Rules Impact PEG Access Stations’ Responsibilities Regarding Closed Captioning

24 Aug 2016 00:00:00 -0800

The Federal Communications Commission published a Final Rule in the Federal Register on Tuesday, imposing new reporting requirements on public, educational and governmental access programming with respect to the closed captioning of video programming on television. These obligations include:

New requirements to certify compliance with or exemption from the FCC’s closed captioning rules;
Introduction of a “burden-shifting” model for the resolution of complaints about closed captioning; and
Introduction of a new “Video Programmer Registration” system in which PEG access stations will have to provide contact information into the FCC’s website.

The rules, which apply broadly to the industry as a whole and not simply to PEG programmers, go into effect on Sept. 22.

Federal regulations governing cable television largely divide the world into video programming distributors and video programmers. PEG access stations are video programmers, not VPDs. But the new rule also defines what is a video programming owner, and this will likely impact PEG access stations. Programming owners are defined as entities that either license programming to a distributor, or act as a distributor in licensing video programming intended for households.

So while PEG access programmers are generally not considered VPDs, new regulations are being imposed upon PEG access stations either in their existing role as video programmers, or in their new role as program owners.

Previously, the obligation to provide closed captioning information fell primarily on VPDs. The obligations borne by video programmers and video program owners were, in most respects, subsidiary to the VPD’s obligation to ensure closed captioning. In this Final Rule, that has changed. Video programmers have new compliance obligations.

Most significantly, the obligation to provide closed captioning has been broadened from one primarily falling on VPDs to one falling on both VPDs and video programmers, including programming owners.

Mandatory Certification

The order puts in place new requirements to make certification of closed caption mandatory, and to make such certification directly to the FCC. The new rule makes it mandatory that each video programmer certify that its programming complies with the closed captioning rule and complies with the agency’s quality standards. The new trigger for compliance is a new section 79.1(m), “Video programmer certification,” which requires that, by July 1, 2017, or prior to making video programming available, “each video programmer shall submit a certification to the Commission through a web form located on the Commission’s website….”

Importantly for PEG programmers, video programmers may either attest to their compliance, attest to the fact that all of the video programmer’s programs are exempt from closed captioning rules (and state the category of exemption claimed by the video provider), or both certify compliance and note exemptions.

Burden Shifting for Complaints

When complaints are received about the quality or existence of closed captioning, the VPD has the initial burden of reviewing the source of the problem and whether its equipment is causing the absence of closed captioning. If the VPD cannot address the complaint upon investigation, the burden shifts to the video programmer. Complaints may be filed either with the FCC or with the VPD.

Video Programmer Registration

Previously, VPDs were responsible for providing the FCC with contact information for the receipt and handling of closed captioning complaints. This contact database was known as the “VPD Registry.” With the additional responsibility now imposed upon video programmers, the FCC is creating a Video Programmer Registration system for the handling of closed captioning complaints. Video programmers must update changed information within 10 business days. This information is to be submitted through a web form on the FCC website, through which compliance certifications will also be submitted. The Consumer and Governmental Affairs Bureau will be responsible for the development of such forms.

The Alliance for Community Media, the national association of PEG programmers and stations, is seeking a waiver of rules for PEG access programmers that distribute on exempt channels. In a letter to the FCC, the group highlighted the concern that the new definition of a video programming owner “could mean tens of thousands of ordinary citizens and organizations – Cub Scouts, gospel choirs, political candidates, and community groups of every possible stripe – will be required to certify to the Commission on a yearly basis that their programming is exempt due to their distribution on exempt PEG channels.”

Importantly, the list of “exempt programs and providers” remains unchanged. For PEG access stations, the most important of these existing exemptions include programming for which the captioning requirement has been waived by the FCC, locally produced non-news programming with no repeat value and locally produced educational programming.

The FCC’s new closed captioning rules impose obligations upon video programmers, including certification of compliance or exemption to the FCC, meeting the burden of responding to complaints about absent or erroneous closed captioning that cannot be addressed by the VPD, and providing registration and contact information to the FCC. Although the standards for exemption or waiver for PEG programming have not been changed, PEG access stations now have additional reporting requirements and compliance rules.

For more information about these rules and how they may impact your agency, contact the attorney authors of this Legal Alert listed at right in the Telecommunications practice group, or your BB&K attorney.

Please feel free to share this Legal Alert or subscribe by clicking here. Follow us on Twitter @BBKlaw.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

FirstNet

04 Aug 2016 00:00:00 -0800

Best Best & Krieger LLP Partner Gerard Lederer will present during IMLA's webinar "FirstNet." The webinar will cover FirstNet, providing a primer on the status of FirstNet’s nationwide public safety broadband network and some of the implications of this national network deployment for States and Local Government.

When:
August 4, 2016
10-11 a.m. PDT
1 - 2 p.m. EDT

For more information or to register for this webinar, click here.