Milwaukee Sues Over U-Verse

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AT&T faces yet another lawsuit seeking to clarify the legal status of its U-Verse TV Internet Protocol Television service, filed this time by the city of Milwaukee.

In the past, AT&T itself had brought the suits: For instance, it asked courts in California and Illinois to declare that its video product is not subject to cable regulations. The telecommunications provider asserts that the service, delivered via packets of information as the viewer demands it, is not a cable service under current law.

But many cities — now including Milwaukee — maintain that the service is the functional equivalent of more conventional fiber-delivered video services.

AT&T first approached the Wisconsin city in September 2005, when it applied for and received a permit for a 140-foot tower to be used to receive off-air signals. In awarding that permit, the city included the caveat that it was conditioned upon AT&T obtaining all “permits, licenses, franchises or permission” required under federal, state and local law.

Since that time, AT&T had also sought and received 52 applications to place powering cabinets in the city's rights-of-way. Milwaukee officials assert they were told these cabinets were needed for telecommunications services. Telecommunications services are not subject to local regulation.

But on Nov. 16, AT&T notified the city of its intent to launch U-verse services on Dec. 16, alerting the city that the infrastructure improvements it made were also for video delivery.

In December, city officials offered to negotiate for temporary authority for AT&T to operate in the community, where it will compete with Time Warner Cable. But AT&T stressed that it would not apply for a cable franchise unless a court ordered it to do so.

On Dec. 20, the city filed for such an order in U.S. District Court for the Eastern Division of Wisconsin, Milwaukee division. The suit asks the court to declare whether U-verse is a cable product and seeks a preliminary injunction against the San Antonio-based telco until the parties can work out an agreement.

Cities across the country have wrestled with the correct public policy on U-Verse. Some communities, such as Anaheim, Calif. and Reno, Nevada, have handled the challenge by crafting authorizations which let AT&T proceed with the project while retaining municipal rights to regulate, should a court or the federal government rule that IP-delivered services are legally defined as cable services.

Where cities have stood their ground, asserting authority over U-verse as a cable product, AT&T has been the legal aggressor. It sued Walnut Creek, Calif., when that city asserted AT&T needed a cable franchise. But in April, federal Judge Maxine Chesney declined to rule whether IP video is a cable service. Chesney stated that cities could seek franchises because the Telecommunications Act of 1996 does not exclude them from doing so.

Cities in Illinois, including Roselle, Wheaton and Carpentersville, either claimed a moratorium on issuing siting permits for U-verse infrastructure, or denied the permits outright. AT&T sued those cities in federal court in that state, challenging the rights of the cities to regulate. Those suits are still pending.

City officials are especially concerned about the placement of powering vaults, dubbed 52Bs, in the rights-of-way. Officials are concerned that cities may be found liable in accidents caused if the huge vaults encroach roadway setbacks or sidewalks, for instance.

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