Here's an item about an interesting – and potentially important – lawsuit that has been filed by Charter against Virginia's Tax Commissioner claiming that the fee that Virginia assesses for use of public rights-of-way conflicts with and is preempted by the federal Cable Communications Policy Act.
According to the report in Law360, Charter contends that, in this instance, the Virginia rights-of-way (ROW) assessment should be considered a franchise fee because it is not a "general applicability" assessment, but rather one that specifically discriminates against Charter and other cable companies vis-à-vis other video programming providers with which it competes. As an additional franchise fee, Charter claims the ROW assessment, along with the other franchise fees that are assessed, causes Virginia to exceed the Cable Act's 5% ceiling cap on franchise fee assessments. Thus, according to Charter, the Virginia ROW assessment is unlawful.
State and local franchising authorities have long looked to cable operators as "cash cows," often charging fees unrelated to the costs imposed by the service providers, and then using the excessive franchise fees collected to support general operations having nothing to do with cable operations. That makes Charter's lawsuit against Virginia's tax commissioner worth watching.
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