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 STATEMENT  OF  COMMISSIONER  KATHLEEN  Q.  ABERNATHY 
 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,  MB  Docket  No.  05-  311 
 With  the  issuance  of  this  Notice  we  begin  the  process  of  answering  a  complex  question:  when,  if  ever,  do  cable  franchising  requirements  become  unreasonable  barriers  to  entry  by  competing  cable  service 
 providers,  and  how  should  “unreasonable”  barriers  be  defined  and  dealt  with? 
 This  question  is  complex  for  several  reasons.  First,  as  the  Notice  points  out,  local  franchising  authorities  clearly  have  authority  over  many  of  the  operational  aspects  of  local  cable  service:  granting  or 


 denying  franchises,  imposing  buildout  requirements,  and  requiring  specific  access  channel  facilities  and  support.  Nevertheless,  this  authority  is  not  absolute:  it  is  limited  by  the  explicit  provision  of  Section 
 621(  a)(  1)  of  the  Communications  Act,  which  states  that  they  may  not  unreasonably  refuse  to  grant  a  franchise  to  a  competing  cable  service  provider. 


 Determining  what  constitutes  an  “unreasonable”  requirement  in  real-  life  terms  will  require  a  particularly  careful  study  of  the  legal  predicates  and  the  factual  record.  We  need  to  correctly  interpret  not 
 only  the  provisions  of  the  Communications  Act,  but  also  the  holdings  of  federal  preemption  case  law.  Taken  together,  these  laws  require  that  we  accurately  separate  franchising  obligations  that  are  costly  and 
 time-  consuming  from  those  that  are  so  burdensome  and  irrelevant  that  they  constitute  de  facto  entry  barriers.  This  is  an  exacting  standard,  and  meeting  it  will  demand  that  we  have  a  full  and  fair  factual 
 record.  I  believe  the  Notice  we  are  adopting  today  will  help  us  compile  that  record. 
 And  if  we  can  successfully  identify  and  remedy  franchising  requirements  that  are  precluding  competitive  entry,  we  will  have  accomplished  much.  Increasing  cable  competition  will  help  consumers 


 by  lowering  cable  rates  and  giving  consumers  more  choices  and  better  service.  Fully  functioning  markets  invariably  do  a  better  job  of  maximizing  consumer  welfare  than  regulators  can  ever  hope  to  achieve.  That 
 is  why  the  added  discipline  of  marketplace  competition  helps  the  FCC  move  in  the  direction  of  less  federal  regulation. 


 We  can  move  away  from  economic  regulations  designed  for  a  monopoly  environment  and  focus  our  sights  more  narrowly  on  regulations  designed  to  respond  to  social  policy  concerns  that  are  not 
 addressed  by  market  forces. 
 Increasing  competition  and  less  burdensome  regulatory  oversight  will  also  help  broadband  network  deployment  by  all  providers.  And  there  is  no  doubt  that  cheaper,  faster,  and  more  accessible 


 advanced  broadband  services  will  further  our  individual  and  national  welfare. 
 Both  new  entrants  and  incumbent  cable  providers  will  benefit  from  the  elimination  of  terms  and  conditions  found  to  be  unreasonable.  Both  will  be  freed  to  reallocate  their  resources  to  more  productive 


 uses. 
 A  vigorously  competitive  market  is  a  marvelous  thing,  and  ensuring  that  the  benefits  of  competition  and  new  technology  flow  to  cable  consumers  is  one  of  the  best  actions  the  Commission  can 


 take.  I  am  happy  to  support  this  Notice  because  it  will  help  us  do  that. 
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