Constitutional Issues Under Ohio's New Regulatory Framework for Video Service Providers

AuthorGregory M. Saul
PositionGraduated magna cum laude from Knox College in April 2003
The 127th Ohio General Assembly recently passed A mended
Substitute Senate Bill 11 7 (Senate Bill 117), legislation that replaces the
former local cable television franchising process with a state video
franchising process.1 State Senator Jeff Jacobson was the bill’s primary
sponsor.2 The bill passed in the Ohio Senate by a twen ty-nine to four vote
on May 9, 2007,3 and then an amended versi on of the bill passed in the
Ohio House of Representatives by a ninety-four to t wo vote on June 1 4,
2007.4 The Senate concurred with the House’s amendments on Jun e 19,
2007.5 Gov ernor Strickl and then signed the bi ll on June 25, 2007, and the
bill became law on September 24 , 2007.6
Under previous law, cable television providers were required to
negotiate separate fr anchise agreements with every locali ty where they
Copyright © 2009, Gregory M. Saul.
* I graduated magna cum l aude from Knox College in April 200 3, majoring in political
science with a minor in history. I have been employed as a L egislative Aide to State
Senator Jeff Jacobson , President Pro T empore, since September 2003. I beg an my legal
studies as a part-time evening student at Capital University Law Sch ool in the fall of 2005.
1 Amend. Substitute S.B. 1 17, 127th Gen. Assemb. (Ohio 20 07) (enacted). Senate Bill
117 can be found on the Ohio Senate web site at
http://www.legislature.state 127_SB_117_EN_N.pd f.
2 See OHIO SENATE J., 127th Gen. Assemb., at 341 (Ohio 2007), available at
http://www.legislature.state /SJ-05-09-07.pdf.
3 Id. at 343.
4 OHIO HOUSE REPRESENTATIVES J., 127th Gen. Assemb., at 472–74 (June 14, 2007),
available at http://www.leg
5 Ohio Legislative Service Commission, Senate Bills—Status Rep ort of Legislation—
127th Gen. Assemb., S.B. 117,
6 Id.
wished to of fer cable serv ices.7 Senate Bil l 117 elimin ates the requ irement
for companies to negotiate independent franchise agreements with each
local government,8 and replaces it with a state au thorization process
administered by the Ohio Dep artment of Commerc e.9 The law also
recognizes that vid eo services can now be provided over differen t types of
networks using various technologies, such as internet protocol-based
technology.10 The state video franchisi ng process will provide a more
streamlined avenue for companies to enter the Ohio video service market
and compet e for customers. In the past three years, similar legislation has
been passed in at le ast nineteen other states.11
7 See 47 U.S.C. § 541 (2000). The local co mmunities began exercising authority as
local f ranchising authoritie s (LFAs) under federal law w ithout any direction o r limitation
from the General As sembly (except for the township pro visions contained in sections
505.90, 505.91, and 505.92 of the Ohio Revised Code, which were subsequently repealed in
section 2 of Senate Bill 117 ). However, direct broad cast satellite requires no local
franchise. OHIO REV. CODE ANN. § 133 2.21(J) (LexisNexis Supp. 2009).
8 § 1332.26(A) (“No political subdivision shall require a video service provider to
obtain from it any authori ty to provide video service within its bound aries.”).
9 Id. § 1332.24(A).
10 Id. § 1332.21(J).
11 See S .B. 807 , 2008 Leg., Reg. Sess. (L a. 2008) (signed on June 23, 2 008); H.B.
1421, 105th G en. Assemb., Reg. Sess. (T enn. 2008) (signed on M ay 15, 2008); Assemb. B.
207, 2007 Leg. (Wis. 2007) (signed on Dec. 21, 2007); H.B. 718 2, 2007 Gen. Assemb.,
Reg. Sess. (Con n. 2007) (signed on July 11, 2007); S.B. 678, 96 th Gen. Assemb., Reg.
Sess. (Ill. 2007) (sign ed on June 30, 2007); Assemb . B. 526, 74th Sess. (Nev . 2007) (signed
on June 4 , 2007); H.B. 227, 2007 Gen. Assemb., Reg. Sess. (Ga. 2007) (signed on May 30,
2007); S. File 554, 8 2d Gen. Ass emb., Reg. Sess. (Iowa 2007) (signed on May 29, 200 7);
H.B. 529, 2007 Leg., Reg. Sess. (Fla. 200 7) (signed on May 18, 20 07); S.B. 284, 94th Gen.
Assemb., 1st Reg. Sess. (Mo. 2007) (signed on Mar. 22, 2007); H.B. 6456, 93rd Leg., Reg.
Sess. (Mich. 2006) (signed o n Dec. 21, 2006 ); Assemb. B. 2987, 2006 Sess. (Cal. 2006)
(signed on Sept. 29 , 2006); S.B. 192, 212th Leg., 2006 Sess. (N.J. 20 06) (signed on Aug. 4,
2006); H.B. 2047, 20 05 Sess. (N.C. 2005) (signed on July 2 0, 2006); H.B. 4428, 116th Gen.
Assemb., Reg. Sess . (S.C. 2006) (signed on May 23, 2006); Substitute S.B . 449, 2006 Sess.
(Kan. 2006) ( signed on Apr. 7, 2006); H.B. 1279, 114th Gen. Assemb., 2d Reg. Sess. (Ind .
2006) (signed on Mar. 14, 2006); S.B. 706, 2006 Sess. (Va. 2006) (signed on Mar. 10,
2006); S.B. 5, 79th Leg., 2d Called Sess. (Tex. 2005) (signed on Sept. 7, 200 5).
A. The Purpose of S enate Bill 117
The Ohio General Assemb ly sets fo rth its purpo ses for en acting Senate
Bill 117 in section 1332.22 of the Ohio Revised Cod e. The bill was
enacted in order to increase competitive en try into th e video service ma rket
by provi ding “a uniform regulatory frame work.”12 “[L]ocal franch ise
requirements” were viewed as “barriers to en try”13 and caused “delays for
new entran ts.”14 The Ohio legislature det ermined t hat th e develop ment of
the “vi deo serv ice m arket” was a “state wide con cern,” and used the
“state’s po lice power”15 to set forth “a rul e of conduct upon citizens
generally.”16 These p rovisions ad dress the poten tial issues under the Home
Rule Amendment of the Ohio Constitution, discussed in Part IV o f this
article.17 Most importantly , the statute declared that “[m ]aintaining an
existing franchise in cases where new entrants obtain video s ervice
authorizations is not approp riate unles s the incumbent chooses t o maintain
that franchise.”18
12 § 1332.22(H) (“This state can and should provide a uniform regulatory fr amework
by which persons can rapidly and expedit iously provide video service to r esidents of this
state regardless of their jurisdictional locations, whi ch framework will promote rapid
competitive entry into th e video service market and encourage additional, s ignificant
infrastructure investment. ”).
13 Id. § 1332.22(D) (“To date, there has b een only minimal com petitive entry by
telephone companies into the facilities-based video programming market in this state, in
part, because local franchis e requirements may present barriers to en try.”).
14 Id. § 1332.22(G) (“Local franchise and other requirements may present inord inate
delays for new entrants.”).
15 Id. § 1332.22(J) (“The continued developm ent of Ohio’s video service market and
promotion of infrastru cture investment are m atters of statewide concern and are properly
subject to exercises of thi s state’s police power.”).
16 Id. § 1332.22(K) (“By an alogy to [American Fina ncial Services. Ass’n v. Cleveland,
858 N.E.2d 7 76, 783 (Ohio 2006) (citing City of Canton v. State, 766 N.E.2d 963, 964
(Ohio 2002) (syllabus) )], sections 1332.21 to 1332.34 o f the Revised Code are intended as a
comprehensive legislat ive enactment operating uniformly th roughout this state, setting forth
police regulations, and pr escribing a rule of conduct upon citizens gene rally.”).
17 See infra Part IV.
18 § 1332.22(I).

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