1
STATEMENT OF 
COMMISSIONER JONATHAN S. ADELSTEIN
DISSENTING
Re: Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984 as 
amended by the Cable Television Consumer Protection and Competition Act of 1992, 
Report and Order and Further Notice of Proposed Rulemaking, MB Docket No. 05-311
The policy goals of this Order, to promote competitive video offerings and broadband 
deployment, are laudable.  But while I support these goals, today’s item goes out on a limb in 
asserting federal authority to preempt local governments, and then saws the limb off with a 
highly dubious legal and policy scheme that substitutes our judgment as to what is reasonable for 
that of local officials – all in violation of the franchising framework established in the 
Communications Act.
This Order is certain to offend many in Congress, who worked long and hard on this
important issue, only to have a Commission decision rushed through with little consultation.  The 
result will be heavy oversight after-the-fact, and a likely rejection by the courts.  It will solve 
nothing, add to the confusion, and provide little or no progress on our shared goal of promoting 
video competition.
This outcome is disappointing because I believe we must do everything we can to 
encourage competitive video offerings.  As I was driving to work this morning, I saw a line of 
heavy Verizon trucks installing FiOS in my neighborhood.  I must admit, I am very excited about 
this new service, and plan to take it up if I can convince my wife to do so.  FiOS is now available 
because our local county officials approved a franchise for Verizon.  If they hadn’t, I imagine 
many of my neighbors would have complained loudly.  Maybe that’s why Verizon’s CFO told 
Wall Street just this month, “Even in those states where we don’t have the whole state, places 
like Pennsylvania, we have become very successful now in getting franchising.  So we don’t see 
that as an issue going forward.”1  
As I said in response to the underlying NPRM in this proceeding: “Congress clearly 
sought to promote competitive cable offerings and to facilitate the approval of competitive cable 
franchises in the Cable Act of 1992.”2 I agree the Commission should do what it can within the 
scope of the law to facilitate increased video competition because it benefits American 
consumers, promotes U.S. deployment of broadband networks and services, and enhances the
free exchange of ideas in our democratic society. 
  
1 Final Transcript, Thomson StreetEvents, VZ-Verizon at UBS 34th Annual Global Media Conference, Dec. 6, 2006, 
at page 7, available at, http://investor.verizon.com/news/20061206/20061206_transcript.pdf
2 Statement of Commissioner Jonathan S. Adelstein, Implementation of Section 621(a)(1) of the Cable 
Communications Policy Act of 1984, as amended by the Cable Television Consumer Protection and Competition Act 
of 1992, MB Docket No. 05-311, Notice of Proposed Rulemaking, FCC 05-180 (rel. Nov. 18, 2005) (Local 
Franchising NPRM).
2
Unfortunately, notwithstanding these worthy goals, I cannot support this Order because 
the FCC is a regulatory agency, not a legislative body.  In my years working on Capitol Hill, I 
learned enough to know that this is legislation disguised as regulation.
Today’s Order is disappointing because there is bipartisan agreement that the current 
video franchising framework can use refinement to better reflect marketplace realities, 
technological advancement, and consumer demands. Instead, the majority attempts to 
accomplish today what the elected representatives of the American people have tried to do 
through the legislative process. In doing so, the Commission not only disregards current law and 
exceeds its authority, but it also usurps congressional prerogatives, ignores cannons of statutory 
construction and the plain meaning of Title VI.  In crafting an overly broad and aggressive 
solution, the majority engages in “legal gymnastics” that would only impress an Olympic judge
whose vote has been promised before the competition even begins.  
When we launched this proceeding, the central question I posed was “whether the local 
franchising process truly is a hindrance to the deployment of alternative video networks, as some 
new entrants assert[ed].”3 In response, the record evidence provides scant, dated, and isolated 
examples that fall far short of demonstrating a systematic failure of local governments to 
negotiate in good faith and above board.  According to the Telecommunications Industry 
Association (TIA), “some recent examples of overly-burdensome, and … ‘unreasonable,’ 
extraneous obligations”4 include: (1) Merton Group’s two year negotiations with Hanover, New 
Hampshire, which concluded in December, 2004; (2) Knology’s negotiations with Louisville, 
Kentucky, in early 2000; (3) Knology’s franchise negotiations with the greater Nashville, 
Tennessee area in March 2000; and (4) Grande Communication’s negotiations with San Antonio 
and Corpus Christi, Texas, in 2002.  Additionally, Fiber-To-The-Home Council cites the efforts 
of Guadalupe Valley Telephone Cooperative to seek a franchise in the City of Bulverde, Texas in 
2004. Moreover, the Order relies on generalized complaints by Verizon and AT&T about 
negotiations being drawn out over an extended period of time; and complaints by U.S. Telecom
Association, Qwest and Bell South5 about new entrants accepting franchise terms that they
considered unreasonable in order to avoid further delay in obtaining the franchise.  
These abovementioned examples, based on my review of the record evidence, are the 
extent to which competitive video providers argue that LFAs are delaying in acting on franchise 
applications.  I find these examples, individually and collectively, wholly insufficient to justify 
an extra-statutory process in which Commission action federalizes the nation’s local franchising
process. Nothing here rises to the level that warrants the drastic measures adopted by the 
Commission in this Order.  The Commission’s blind acceptance of a few alleged instances as 
illustrative of a much broader problem is telling.  The Commission did not conduct any 
independent fact-finding, nor did it attempt to verify the allegations made by parties who have a 
  
3 Adelstein Statement, Local Franchising NPRM.
4 Letter from Grant Seiffert, to Jonathan S. Adelstein, Commissioner, FCC, MB Docket No. 05-311 (filed dated 
December 11, 2006).
5 Curiously a number of references to the efforts of BellSouth to obtain franchises contained in earlier drafts of the 
Report and Order have been struck from later versions of the item.
3
vested interest in the outcome of this proceeding.  Even more shocking, the Commission and the 
commenters fail to cite to an actual, present day problem with any specific LFA.6
I don’t normally quote Ronald Reagan, but his view is so relevant here.  In his first 
inaugural address, he exhorted us:  "Together, after 50 years of taking power away from the 
hands of the people in their states and local communities we have started returning power and 
resources to them. … Some will also say our states and local communities are not up to the 
challenge of a new and creative partnership. Well, that might have been true 20 years ago. … It's 
no longer true today. This Administration has faith in state and local governments and the 
constitutional balance envisioned by the Founding Fathers.”7
My, how times have changed back again.
To be sure, the franchise process is not perfect and, by definition, LFA review may result 
in some delay.  But the process was enacted after careful consideration, and Congress delegated 
authority to LFAs to make certain policy decisions in determining the merit of granting cable 
franchises.  These policy goals are clearly set out in the Act whatever parties now feel with 
regard to this carefully calibrated and negotiated balance. While Congress has the power to 
revisit this scheme, and has strongly considered doing so, this Commission must adhere to the 
law as written, not as we might like it to be, until it is amended.
Yet today, the Commission is federalizing the franchising process, taking it upon 
ourselves to determine in every local dispute what is “unreasonable,” without having actually 
looked into any local examples to get at the real situation.  Instead of acknowledging the vast 
dispute in the record as to whether there are actually any unreasonable refusals being made 
today, the majority simply accepts in every case that the big phone companies are right and the 
local governments are wrong.  This is breathtaking in its disrespect of our local and state 
government partners.  
  
6 During the Commission’s Agenda Meeting in Keller, Texas, on February 10, 2006, at my request, one Verizon 
official identified Montgomery County, Maryland, as an obstinate LFA that was insisting upon unreasonable illegal 
demand and delaying negotiations.  Since that meeting, Verizon has in fact obtained a franchise in Montgomery 
County.  See Press Release, Montgomery Country, Md., County Negotiates Cable Franchise Agreement with 
Verizon; Agreement Resolves Litigation, Provides Increased Competition for Cable Service (Sept. 13, 2006) 
(available at http://www.montgomerycountymd.gov/apps/News/press/PR_details.asp?PrID=2582).  In fact, this 
Order blatantly ignores public statements that significantly undermine representations some proponents of this 
decision have made to the Commission.  For example, AT&T has publicly stated the Project Lightspeed will be 
available to 90% of its “high-value” customers, but to less than 5% of its “low value” neighborhoods, but today the 
Commission undermines a localities’ ability to ensure all residents are served. Leslie Cauley, Cable, phone 
companies duke it out for customers, USA Today, May 22, 2005, available at: 
http://www.usatoday.com/money/media/2005-05-22-telco-tv-cover-usat_x.htm?csp=34 (last viewed 12/20/06).  As 
the CEO of one major new entrant recently noted, “Any place it’s come to a vote, we win.” Dionne Searcey, As 
Verizon Enters Cable Business, It Faces Local Static Telecom Giant Gets Demands As It Negotiates TV Deals, Wall 
St. J., Oct. 28, 2005, at A1. Yet in today’s Order, the Commission somehow determines that there is widespread bad 
faith just on the part of the LFAs, not the new entrants, in order to justify this sweeping federal preemption.
7 Ronald Regan, State of the Union Address, January 26, 1982, available at, 
http://www.reagan.utexas.edu/archives/speeches/1982/12682c.htm.
4
This Order also displays a fundamental misunderstanding about the commitment of 
LFAs to bring competition to their citizens.  Unlike us, many of these officials are elected and 
very directly accountable to their citizens.  Our knee-jerk embrace of everything big companies 
say while discounting local elected officials certainly does not inspire a lot of confidence that the 
Commission has the ability on the Federal level to actually arbitrate every local dispute in the 
country to fairly decide who is being reasonable and who is not. Even if we did, there is no 
mechanism outlined in this Order to establish how that process will work.  The end result will 
likely be litigation, confusion, abuse of the process, and a certain amount of chaos. It is sadly 
ironic that this agency, which is now in violation of one of its own 90 day statutory deadlines, is 
telling localities to do as I say, not as I do.8  
For the past two years, both chambers of Congress have held nearly two dozen hearings, 
and sought to enact legislation amending the Cable Act to reform the current franchising process
and “strike the right balance between national standards and local oversight.”9 Yet, the 
Commission has finalized in the dark of last night what Congress was unable to resolve in two 
years of intensive deliberations.  In contrast to the Senate where I used to work, one might call 
the FCC the world’s least deliberative body.  And the final product shows it.
The House bill proposed a national cable franchising regime, while the Senate bill 
proposed an expedited competitive franchise process and would have required local franchising 
authorities to issue franchises pursuant to a standard franchise application form that would be 
drafted by the Commission.  Today’s Order turns federalism on its head by putting the 
Commission in the role of sole arbiter of what is a reasonable or unreasonable LFA practice and 
simply eliminating the franchise process in certain circumstances if an arbitrary shot clock has 
expired. 
While Congress was working to change federal law and empower the Commission, there 
was and continues to be considerable state and local activity to reform the local franchise 
process.  To date, nearly half of all states have adopted state-wide franchise reform or mandatory
state franchise terms, or have engaged in a democratic process to enact meaningful franchise 
reform legislation.10 Hundreds of other localities have approved new franchises, and many more 
are in the works.
  
8 See, e.g., In the Matter of Comcast Corporation’s Request for Waiver of 47 C.F.R. § 76.120(a)(1), CSR-7017-Z, 
CS Docket No 97-80, DA-06-2543, CS Docket No 97-80, filed 5/17/06 (waiver proceeding still pending past the 
statutory “shot clock”); 47 U.S.C. § 549(c) (“the Commission shall grant any such waiver request within 90 days of 
any application filed under this subsection”); 47 C.F.R. § 76.1207 (omitting the ninety day “shot clock”).
9 H.R. REP. No. 109-470, at 3 (2006).
10 While the Order purportedly refrains from explicitly preempting “statewide franchising decisions” and only 
addresses “decisions made by [instrumentalities of the state, such as] county – or municipal level franchising 
authorities,” this dubious distinction has questionable legal basis.  Moreover, the Commission’s assertion – “we lack 
a sufficient record to evaluate whether and how [ ] relatively few states that have had statewide franchising for a 
longer period of time to draw general conclusions with respect to the operation of statewide franchising process” 
(Order at n.2) – that it does not have sufficient information in the record to consider the effect of franchising by 
states (some of which have had laws in place for a decade), but has sufficient record evidence to preempt 33,000 
LFAs, is facially disingenuous.
5
Notwithstanding the scant evidence to justify the creation of a nationwide local 
franchising process in contravention of federal law, the Commission conjures its authority on just 
two words in 621(a)(1)11 – “unreasonably refuse” – to reinterpret and, in certain respects, rewrite
Title VI of the Communications Act.  While I agree that the Commission has authority to 
interpret and implement the Communications Act, including Title VI, the Commission does not 
have authority to ignore a tenet of statutory construction, expressio unius est exclusio tlterius, 
that the expression of one thing is the exclusion of another, especially if the excluded language is 
opposite of the expressed. This tenet applies in this case. 
Section 621(a)(4), for example, expressly states “[i]n awarding a franchise the 
franchising authority shall allow the applicant’s cable system a reasonable period of time to 
become capable of providing cable service to all households in the franchise.”12 Absent express
statutory authority, the Commission cannot declare it unreasonable for LFAs to require a build-
out and service to households in the franchise area over a reasonable period of time. The
Commission’s argument in this regard is particularly spurious in light of the stated objectives of 
this Order to promote broadband deployment and our common goal of promoting affordable
broadband to all Americans. In the end, this is less about fiber to the home and more about fiber 
to the McMansion.
There are certain salient features of today’s Order that raise serious legal questions
requiring careful scrutiny: (1) imposing 90-day shot clock for new entrants with existing rights of 
way; (2) requiring the grant of a new entrant’s franchise after 90-days; (3) limiting the scope of a 
new entrant build-out obligation; (4) authorizing a new entrant to withhold payment of fees that 
its deems to be in excess of the 5 percent cap; (5) undermining PEG and INET support; and (6) 
authorizing a new entrant to refrain from obtaining a franchise when it is upgrading mixed use 
facilities that will be used for the delivery of video content.
The Order finds that franchising negotiations that extend beyond time frames created 
today by the Commission amount to an unreasonable refusal to award a competitive franchise 
within the meaning of 621(a)(1).  This finding ignores the plain reading of section 621(a)(1), 
which provides, in pertinent part, that a franchising authority “may not unreasonably refuse to 
award an additional competitive franchise.”13 On its face, Section 621(a)(1) does not impose 
any time limitation on an LFA’s authority to consider, award or deny a competitive franchise.  
The following sentence of the same provision provides judicial relief, with no Commission 
involvement contemplated, when the competitive franchise has been “denied by a final decision
of the franchising authority.”14 There is no ambiguity here: Congress simply did not impose a 
time limit on franchise negotiations, as it did on other parts of the process.  Hence, whether you 
read section 621(a)(1) alone or in context of the entire provision, its plain and unambiguous 
  
11 47 U.S.C. 541(a)(1).
12 47 U.S.C. 541(a)(4) (emphasis added).
13 47 U.S.C. 541(a)(1) (emphasis added).
14 Id. (emphasis added).
6
meaning, is contrary to the Commission’s interpretation.  It provides an expressed limitation on 
the nature, not the timing, of the refusal to award a competitive franchise.15  
Even if I were able to move beyond this Order’s facially defective reading of 621(a)(1), 
the Commission’s selection of 90 days as the only reasonable time frame for an LFA to consider 
the franchise application of a competitive provider that already has rights-of-way access before it 
is “deemed granted” is inconsistent with the overall framework of Title VI and is not 
demonstrably supported by the record evidence.  
The franchising framework established in Title VI does not support the Commission’s 
decision to select 90 days as the deadline for a default grant – another Commission creation – to 
become effective.  When Congress specifically decided to impose a deadline for LFAs to 
consider renewals and transfers of preexisting franchises, in both instances, Congress chose 120 
days.  In other sections of the Act, the prevalent time frame Congress imposed on LFAs and, in 
certain limited instances, the Commission is 180 days.  Today, the Commission, without explicit 
authority, cannot take the place of Congress and impose a tighter time frame than Congress ever 
contemplated to impose on LFAs in the franchising process.  
Not only is the Commission acting without authority and inconsistently with the current 
framework of Title VI, the Commission lacks record evidence to support the creation of such an 
arbitrary and capricious time frame.  Generalities and unconfirmed allegations should not be the 
basis for a radical shift from a well-established franchising process. While a 90-day deadline is 
certainly reasonable, the problem is that the legal basis for demanding it is the assertion that 
anything more – such as 91 days – is unreasonable.  That is unreasonable on its face, given that 
Congress itself set a 120 day deadline for franchise transfers, which tend to be simpler than 
awarding new franchises, unless my colleagues are willing to assert that Congress was 
unreasonable.
To make matters worse, the Commission-created 90-day shot clock seems to function 
more like a waiting period, during which time the new entrant has little incentive to engage in 
meaningful negotiations.  An objective review of the evidence shows that there is sufficient 
blame on both sides of the negotiation table. Sometimes, there are good reasons for delay; and at 
other times, one side might be stalling to gain leverage.  While the majority must be aware of this 
standard negotiations tactic, they have failed to even mention the need for LFAs and new 
entrants to have reciprocal good faith negotiations obligations.  The majority also has ignored the 
apparent need to develop a complaint or grievance mechanism for the parties to ensure 
compliance.  Perhaps imposing on the Commission a binding deadline to resolve complaints 
would inject an incentive for both sides to negotiate, meaningful and in good faith.
  
15 Congressional intent to qualify the nature of an LFA’s refusal, not the timing of the refusal, is clear when you 
consider another provision of Section 621(a).   In 621(a)(4)(A) – “franchising authority shall allow the applicant’s 
cable system a reasonable period of time to become capable of providing cable service to all households in the 
franchise area” – Congress explicitly qualified timing, not the scope of buildout. The Commission’s attempt to 
super-inflate the significance of “unreasonably” in 621(a)(1), and diminish the significance of “unreasonable” as a 
qualifier of  “period of time” – not “service to all household” – is transparently inconsistent and unpersuasive.
7
Another weakness in this Order is that the Commission, again without anything other 
than the authority to interpret “unreasonable refuse,” creates a remedy for an LFA’s failure to 
negotiate within the Commission-created time limits.  The consequences of the failure to reach 
agreement within either the 90-day – the LFA will be deemed to have granted the new entrant an 
interim franchise based on the terms proposed in the new entrant’s franchise application.  In 
selecting this remedy, the Commission merely “seeks to provide a meaningful incentive for local 
franchising authority to abide by the deadlines contained in the Order.”16
Aside from this blatantly one-sided approach, the Commission cited no specific authority 
that empowers the Commission to deem a new entrant’s franchise application granted by the 
LFA.  When construing a statute, principles of construction caution against any interpretation 
that may contravene the law or U.S. Constitution.  In this case, I am wary of a federal agency, 
which purports to not preempt any state franchising law, but yet is prepared to step into the shoes 
of an LFA – an instrumentality of the state – to grant, effectively and perhaps temporarily, a 
franchise application with all the attendant rights-of-way privileges.17
An option that was rejected by the majority was a “deemed denied” approach in the event 
the shot clock expired without LFA action.  This approach seems more consistent with the letter 
and spirit of the Communications Act, Title VI, and specifically sections 621(a)(1) and 635.  So 
while nowhere in the Act is the Commission granted the authority to grant franchises or force 
localities to do so, the “deemed denied” approach seems to fall more within the bounds of our 
authority to speed the opportunity for judicial review.
The Commission seems to make a deliberate effort to overlook the plain wording of the 
statute.  The Commission concludes that “it is unlawful for LFAs to refuse to grant a competitive 
franchise on the basis of unreasonable build-out mandates.” As I mentioned earlier, the
Commission’s analysis in this regards is anemic. The Commission is correct on one point, that 
Section 621(a)(4)(A)  is actually a limitation on LFAs authority. However, consistent with plain 
reading of the provision and its legislative history, Section 621(a)(4)(A) surely is not a grant of 
authority to the Commission and does not impose a limitation on the scope of a competitive 
provider’s build out obligation.  Indeed, the provision explicitly limits the “period of time” to 
build-out, but an LFA is unrestrained to impose full, partial or no build-out obligations on all 
cable service providers.  While this policy should change to facilitate competitive entry and 
promote broadband deployment, that’s not the current state of the law.  The Commission has not 
been ordained with a legislative “blue pencil” to rewrite law. 
The rapid deployment of broadband has been a goal of mine since I joined this 
Commission. Wireline competition in the video market, particularly, is not only critical as a 
means to constrain prices, which in itself is a worthy goal after year upon year of price hikes. It 
is also critical to the future of our democracy that Americans have access to as many forms of 
video content as possible so they can make up their own minds about the issues of the day and 
not remain subject to a tiny number of gatekeepers who can decide what deserves airing based on 
  
16 Order at para 76.
17 U.S. Const, Amend. X
8
their own financial or ideological interests.  But, in order for the Commission to promote these 
goals effectively, we must operate within our legal authority.
The broad pen with which the majority authors today’s Order does not stop with build 
out, the Order also uses the Commission’s expansive authority under Section 621(a)(1) to 
determine that “any refusal to award an additional competitive franchise because of an new 
entrants refusal  to accede demands that are deemed impermissible shall be considered to be 
unreasonable.”  To state this finding is sufficient to refute it.18 PEG facilities and access provide 
an important resource to thousands of communities across this country. Equally important, 
redundancy or even duplicative, I-NET provide invaluable homeland security and public health, 
safety and welfare functions in towns, city, localities and municipalities across America.  It is my 
hope today’s decision does not undermine these and other important community media resource 
needs.  
While my objections to today’s Order are numerous and substantial, that should not 
overlook the real need I believe there is for franchise reform.  Indeed, there is bipartisan support 
for reform in Congress, and LFAs, throughout this country, are committed to bring video 
competition to their jurisdiction.  My fundamental concern with this Order is that it is based on 
such paper-thin jurisdiction, but yet it is truly broad in scope, ignores the plain reading of the 
statute, usurps congressional prerogative and pre-empts LFAs in certain important respects that 
are inconsistent with the Act.
The sum total here is an arrogant case of federal power riding roughshod over local 
governments.  It turns federalism on its head.  While I can support certain efforts to streamline 
the process and preclude local authorities from engaging in unreasonable practices, this item 
blatantly and unnecessarily tempts the Federal courts to overturn this clearly excessive exercise 
of the limited role afforded to us by the law.  The likely outcome of being reversed in Federal 
Court could have pernicious and unintended consequences in limiting our flexibility to exercise 
our discretion in future worthy endeavors. 
Accordingly, I dissent. 
  
18 The legislative history of 1984 Cable Act provides “in general, [section 622(g)(2)(C)] defines as a franchise fee 
only monetary payments made by the cable operator, and does not include as ‘fee’ any franchise requirement for the 
provision of services, facilities or equipment. As regards PEG access in new franchises, payment for capitol costs 
required by the franchise to be made by the franchise to be made by the cable operator are not defined as fees under 
this provision”  H.R. REP. No. 98-934, at 65 reprinted in 1984 U.S.C.C.A.N. 4702