Montgomery County is on track to becoming one of the first, if not the first, jurisdictions in the nation to establish a set of regulations for cable modem service. County Executive Doug Duncan (D) sent over a set of proposed regulations to which the council suggested several amendments.
The amendments will be sent back to Duncan who may choose to return an amended set of regulations to the council. A straw vote on the whole package at the end of the debate passed 6-3 (against were council members Mike Knapp (D-2), Nancy Floreen (D-At Large) and Michael Subin (D-At Large)). A final vote that would incorporate changes recommended by Duncan is scheduled for July 27.
Emotions ran high at the beginning of the meeting.
Proposed amendments ran across a range of topics. The first discussed was the use of the word "unforeseeable" and whether or not cable modem providers should be held responsible for unforeseeable equipment failures.
"What is foreseeable?" said Subin, who introduced the amendment. "My problem is it's too vague a term." He contended that such a term would lead to court challenges. "What is an unforeseeable failure. … in whose eyes?" Subin said. "It's going to cause a problem at some point."
Other council members thought that it was a reasonable word to include. "Foreseeability is a term that has been used since the beginning of time in our legal system," said Councilmember Tom Perez (D-5). The word has not yet forced the legal system to grind to a halt, Perez noted.
"The principal here is accountability. It is not wordsmithing," said Councilmember Phil Andrews (D-3).
The word was removed on a 5-4 vote (see sidebar).
ANOTHER DISCUSSION centered around when a provider should know if there is an interruption in their service. Subin proposed an amendment to remove the words "should have known," which Subin felt were too vague. "This just muddies the waters even more.
Praisner said that providers should know when their service is out. "We believe this is an accountability issue."
Perez introduced a compromise by adding the term "ordinary due diligence" to the regulation, reasoning that is what should be expected from most entities under most circumstances. "We're not asking them to be heroic," he said. The measure passed unanimously.
An amendment introduced by Council President Steve Silverman (D-At Large) would have given cable providers more leeway in repairing problems. Silverman wanted repairs to be initiated within 24 hours; the regulations would require them to be complete within 36 hours. The amendment failed.
An amendment that will allow providers to conduct maintenance to systems which causes a service interruption of less than two hours between 12 and 6 a.m. was introduced by Councilmember Michael Knapp (D-2).
Knapp said that such maintenance issues sometimes come up without sufficient time to notify customers.
Praisner rejected this reasoning that if it is planned, then, by definition, the company has notice and so should the customers. "If it is planned maintenance, whatever hours, whatever time period, the subscriber should get notice," she said.
It passed 5-4. In favor were Subin, Knapp, Leventhal, Floreen and Silverman. Against were Andrews, Praisner, Perez and Denis.
Subin introduced an amendment that said the county should review forms sent to customers, but does not have to approve them. "I just don't want to set the precedent that the county should be approving all forms that a local business sends out to its customers," Subin said.
Customers will be entitled to a rebate if they experience a service outage that is not promptly repaired. The subscriber will be entitled to a pro-rated rebate for each 24-hour period.
Silverman also introduced an amendment that would have changed the possible penalties that would be levied on providers who fail to abide the regulations. Among other changes, it would have removed the council's ability to revoke the franchise agreement, under which the provider operates.
The franchise agreement for cable modems is linked to that of cable television. Silverman reasoned that since one could not be removed without the other, the council would not end cable television service to residents because of some complaints about modems. "I think this is a remedy we will never use. I'd rather not put it in," he said.
Praisner said it is necessary to have the option in as a last resort. "What's going to trigger that? I can't think of anything. But do I want that check and balance? Yes," she said.
Perez noted that while he was working in the U.S. Attorney General's Office, there were frequently provisions included in federal standards that could cause entities to lose all federal funding. Although almost never used, "It was a good deterrent," he said.
Silverman's amendment failed 4-5.