Opinion No. ( 1987 )

Honorable Bobby Tullis State Representative Box 277 Mineral Springs, Arkansas 71851

Dear Representative Tullis:

This is in response to your request for an opinion regarding the de-regulation of the cable television industry. You have asked the following specific questions in this regard:

1. How does the federal de-regulation of cable television affect Arkansas Statute 19-2319?

2. In light of federal de-regulation of cable television, will privately owned cable television be able to compete against municipally owned cable television companies without obtaining a franchise from the municipality?

In answering your questions, I assume you that are referring to the Cable Communications Policy Act of 1984, which is codified as47 U.S.C.A. 521 et seq. It would be noted in response to your first question that this Act states in pertinent part under47 U.S.C.A. 541(c) as follows: "[a]ny cable system shall not be subject to regulation as a common carrier or utility by reason of providing any cable service." Reliance upon Ark. Stat. Ann. 19-2319 (Cum. Supp. 1985) as authority for the regulation of a cable television company as a utility would therefore be contrary to the Federal Cable Communications Policy Act.

Your second question must be answered in the negative.47 U.S.C.A. 541(b)(1) requires cable television operators to secure a franchise prior to providing cable services. 541(b)(2) does provided an exception to this requirement wherein it states that "any person lawfully providing cable service without a franchise on July 1, 1984, [shall not be] required to obtain a franchise unless the franchising authority so requires."

The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.