Saturday, May 24, 2003

Bristol Virginia approves cable franchise for Bristol Virginia Utilities

As reported here, last night the City Council of Bristol, Virginia, approved a cable franchise for the Bristol Virginia Utilities to provide cable television service within the city.

July 1 marks perhaps the end of the beginning of the municipal telecommunications project in Virginia, as then BVU will be authorized by state law to provide cable services, in addition to high-bandwidth internet connections and telephone service.

The Bristol telecommunications effort began in 2000, with a lawsuit against the Attorney General of Virginia for a declaration that the Virginia law then in effect was preempted by the federal Telecommunications Act of 1996. Congressman Rick Boucher from SW VA, who was a significant contributor to the '96 Act, filed an amicus brief in support of the BVU's position in the case. Judge Jones in this opinion held that the Virginia law was prohibited, and that federal law prohibited state barriers to entry against "any" entity, which included municipalities. Judge Jones was the first to rule this way on the issue, rejecting precedents from the D.C. Circuit and some state appeals courts, but subsequent courts in the Eighth Circuit and Nebraska have agreed with Judge Jones' analysis. The Missouri municipal case out of the Eighth Circuit is now being appealed to the United States Supreme Court.

The result of the Bristol fiber case was a new law in the 2002 session of the General Assembly, authorizing localities in some circumstances to provide telecommunications. When BVU moved forward to provide fiber-to-the-home ("FTTH") for cable, telephone, and internet service, one of the city's cable franchisees, a subsidiary of Charter Communications, filed suit in November, 2002, challenging, among other things, whether the city had authority under Virginia law to provide cable television. The question had previously been considered in a series of official opinions by Virginia's Attorneys General, which arguably supported the conclusion that the City had authority to provide cable. Judge Jones in his December 2002 ruling held that the city did not have authority to provide cable, that such authority was not included in the new law of 2002 and was not expressly conferred within the city's charter.

Senator William Wampler, who lives in and represents the City of Bristol, introduced a second new law in 2003, which expressly authorizes cities in some circumstances to provide cable television, and Wampler bill passed the General Assembly, was signed by Governor Warner, and takes effect on July 1. The city dropped its appeal of Judge Jones' ruling on cable, and the judge entered an order terminating his injunction on the effective date of the new law.

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