Ken Fellman wears a lot of hats. He’s the mayor of Arvada, Colo.,
and a partner with Denver law firm Kissinger & Fellman P.C. He is also a board member of the National Association of Telecommunications Officers and Advisors. His practice emphasizes local government representation, particularly telecommunications law. He has represented numerous local governments in Colorado and nationally in connection with cable television franchising, transfers, renewals, and enforcement actions. Fellman is also general counsel for the Greater Metro Telecommunications Consortium, an agency comprised of 29 cities and counties in metro Denver.
Fellman spoke recently of his concerns about pending federal legislation that would shift oversight of cable services from local cities to the FCC. An edited transcript follows:
Q: How will federal legislation on franchise reform affect customer service?
A: NATOA asked its members how many complaints it got last year and 100 members responded. Between 2004 and 2005, the total averaged 30,000 complaints over both years. That could mean that cable-related complaints to cities were over 1 million for the whole country. For local officials, they can likely handle the volume that comes their way. If there’re 50 complaints made a year to my city manager’s office, I’m pretty confident they know who to call at Comcast to get the problem resolved every time. But if those 50 people are 50 out of 1 million or half million or even 250,000 at the FCC, I have no confidence at all that my citizens are going to be served. So that is a huge issue.
Q: Are you concerned that without local oversight, cable companies may become a bit more lax with their customer service standards?
A: Well, there is always that possibility. Let me give you a couple of examples. First of all, citizens lose the ability to have someone local to solve their problems. And really, 99% of the time it gets resolved. Now what happens if it doesn’t get resolved? As long as it stays on the local level, if the cable company doesn’t resolve it, the city council or the board of county commissioners can hold a hearing and determine if they violated local customer service standards. And if they have, they impose penalties. And it’ll take about six months to go through that process. But there is still basically a timely, local way to solve the problem.
Is the FCC going to fix their problem by calling Comcast’s local people in Denver and say, ‘Hey, can you help?’ No, they’re just going to process the complaint. Will there some administrative way of dealing with this? Will there be a hearing? Will the customer have to hire a lawyer in Washington to go and deal with this? It’s mind-boggling to imagine the FCC be in charge of addressing complaints on a national level for people we handle on a local level now.
Q: What are you most concerned about regarding this possible new legislation?
A: One of the things that I’m really concerned about is that federal government will set the standard and local governments cannot impose different standards. Right now the federal government does set the standards, but local governments can impose more restrictive standards. And I will give you a perfect example of what will disappear in Denver.
In the federal standards, there is a requirement that says they must answer the phone in 30 seconds. What has happened since those standards were made is automatic voice answering, so technically a company is in compliance when you dial Comcast customer service and it picks up and says, ‘Hello, you’ve reached Comcast customer service. For cable, press 1. For high speed Internet, press 2. For phone, press 3.’ People get into customer service purgatory. There is nothing in the federal standards that deals with being able to talk to a live person.
But when the metro Denver region rewrote its customer service standards in 2004, one of the things we said to Comcast was, ‘You can do automatic voice answering if you want. But we have to have a way that when people want to get to a live person, they get a prompt right at the beginning of the phone call that so they can get to a live person within 60 seconds.’ And that is now in the local cable customer service standards.
If you call Echostar or DirecTV, I can guarantee you the average time it takes is going to be 10 minutes to go through all the prompts and then hit whatever you have to hit to get to a live person and then wait. I know because I have been a satellite subscriber and a cable subscriber.
Well, the federal government felt it was not important enough to deal with that issue. We did here on the local level, and now if you’re a cable subscriber you get the benefit of that. That ability goes away under the COPE legislation.
Q: Does the potential loss of franchise fee revenue and/or public, educational and government access requirements concern you?
A: There are a multitude of issues involved and I don’t think I can tell what the most important issue is here. On a broad 30,000-foot level, I can tell you the biggest concern is the loss of localism in any kind of telecommunications oversight regulation. There are clearly elements that it’s important to have at the federal level. But to me, it’s equally important that there is a local role that needs to be respected. The loss of revenue is important but not most important. The new bill proposes to fund PEG. Some cities will benefit and some will be hurt by it. It’s not an issue where you can say that cities across the country hate the funding mechanism for PEG. But I do know that some will close down under this proposed legislation.
Having local programming is absolutely crucial. Take a community on a border of a state and they’re in the DMA in another state, like Durango [Colo.] which is in the Albuquerque DMA -- they don’t get a lot of local programming. And not only do they not get a lot of local programming, they don’t get a lot of Colorado programming. So when you go to Durango, you’ll find a very active and productive government channel and public channel. And the people love it down there. It’s the source of their local programming. I am sure you can find examples of that in every state. If they lose funding, it would be a huge loss. It may not be a broad-based national problem, but it will be for a lot of communities.
Q: Will telcos be held to the same standards? Will cable operators be able to walk away from the rules and standards they have had to adhere to until now?
A: It’s unclear at this point. If it does say that, I think it’s unconstitutional. There is a provision that says Congress shall pass no law impairing the obligation of a contract and a cable franchise is a contract. So if Congress passes a law that says cable companies are now off the hook, you get to start over under this national framework, I am sure there will be litigation.