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Is this FCC Advisory Committee Steamrolling Cities to Help ISPs?

Submitted on January 26, 2018

 

You’re reading the Benton Foundation’s Weekly Round-up, a recap of the biggest (or most overlooked) telecommunications stories of the week. The round-up is delivered via e-mail each Friday.

Round-Up for the Week of January 22-26, 2018

Robbie McBeath
       McBeath

The Federal Communications Commission’s Broadband Deployment Advisory Committee (BDAC, pronounced Bee-DACK) held its fourth meeting January 23 and 24. The committee’s working groups presented their recommendations on how to accelerate the deployment of high-speed internet access service. Then the full committee debated, amended, and voted on the recommendations. Although the deliberations of governmental advisory committees usually do not make headlines, accusations that BDAC is crafting industry-friendly recommendations and the abrupt resignation of the mayor of San Jose is garnering a bit of interest to say the least.

BDAC Background

On January 31, 2017, in his first open meeting as FCC Chairman,  Ajit Pai announced the formation of a new, federal advisory committee, the Broadband Deployment Advisory Committee. Chairman Pai's goal for BDAC is to provide advice and recommendations to the FCC on how to accelerate the deployment of high-speed internet access service. Since March 2017, BDAC’s various working groups have been developing recommendations to the FCC about strategies to deploy better, faster, and cheaper broadband.

On Tuesday and Wednesday, BDAC held its fourth meeting, at which BDAC's working groups presented their reports and recommendations.

As currently constituted, more than 75 percent of BDAC is made up of representatives from large telecommunications and cable companies, including AT&T, Comcast, and Sprint. The Center for Public Integrity released an inforgraphic on all BDAC committee members, noting only 10 percent of the members represent city or state governments.

BDAC member and San Jose (CA) Mayor Sam Liccardo said in August, “It’s not lost on us that among the 30-odd members of the BDAC, only two represent local government. We’ll see where things go in the weeks ahead, but it’s fair to say the footprints are in the snow.”

Concerns over the makeup of BDAC have plagued the committee since its inception. In November, the National Association of Counties, National League of Cities, and the U.S. Conference of Mayors sent a joint letter urging Chairman Pai “to more fully consider local perspectives” on wireline and wireless broadband decisions, including a request to “provide for an appropriate level of local government representation” on BDAC. The letter was co-signed by 233 local officials from across the nation.

That same month,  Rep. Anna Eshoo (D-CA) and 14 of her Congressional colleagues also sent a letter to Chairman Pai expressing concern over the structure of BDAC. "We are concerned that the composition of the 30-member BDAC relies too heavily on the input of industry voices and less on public officials who are responsible for protecting the public interest and who understand the issues and perspectives of local communities nationwide,” the lawmakers wrote.

“The entire problem is framed as ‘the issue around broadband deployment is state and local government regulations,’” said San Jose Chief Innovation Officer Shireen Santosham. “We’re not talking about what the industry has contributed in terms of lack of deployment and closing the digital divide. We’re focusing almost exclusively on the challenges around city and state regulation.”

BDAC Recommendations

Over the course of two days, BDAC debated the following reports and recommendations:

  • Competitive Access to Broadband Infrastructure -- The working group's recommendations hit on one-touch, make-ready for wireless attachments, make-ready contractor management, defining "complete" attachment applications, joint field surveys for pole attachments, improving self-help remedies, rate disclosure, maximizing use of infrastructure eligible for E-rate subsidies, infrastructure efficiencies, and a common database.

  • Removing State and Local Regulatory Barriers -- The working group offers the following recommendations:

    • Encourage earlier and more comprehensive collaboration between broadband providers and local officials by: (1) promoting the creation and use of a “Broadband Ready” checklist, with input from all stakeholders, to facilitate improved, expedited information flow; and/or (2) publishing model codes.

    • Provide clarity on what actually constitutes an “excessive” fee for ROW access and use, and encourage greater transparency of fees.

    • Study whether a streamlined mediation and arbitration process administered by a neutral third-party (similar to a process detailed in 47 USC §252) would expedite deployment by resolving disputes more quickly.

    • Explain its approach to preemption decisions so that all stakeholders are on notice regarding the potential role of this action in removing state and local regulatory barriers to broadband deployment.

    • Explore how to leverage other expert stakeholders to provide localities and states with opportunities for acquiring the knowledge and skills needed to streamline the deployment of new broadband networks.

  • Streamlining Federal Siting -- The working group's offered ten recommendations:

    • Standardize and publish fee schedules, and utilize revenue in a way that promotes expediting federal siting processes.
    • Require all federal landholding or managing agencies to prioritize broadband permitting. Implement a 60-day shot clock for application review with a deemed approved remedy and a 10-day shot clock for notification of additional materials request.
    • Require all federal landholding or managing agencies to use one standardized application form. Harmonize permitting processes across agencies to extent feasible and ensure the process is uniformly applied across regional and state offices. Recognize and accept existing completed studies in previously disturbed areas.
    • Harmonize environmental assessments across federal landholding or managing agencies, further streamline National Environmental Protection Act and National Historic Preservation Act exclusions, and eliminate duplicative environmental studies. Make current environmental and historic review streamlining mechanisms mandatory for all agencies.
    • All leases and easements should have typical commercial lease terms with the expectancy of renewal to better incentivize investment.
    • Every project should have a single, clear point of contact for application review and follow-up.
    • There should be a single, easily accessible online-tracking mechanism at each federal agency for the permitting process. All agencies should regularly report on permit status and the number of permitting applications they have processed.
    • The common application form should accommodate changes to existing installations and applicable leases and easements. Agencies should accommodate and incorporate new broadband infrastructure technologies into their review processes.
    • Permitting consistent with all necessary measures to protect national security, Department of Defense (DoD) agencies should incorporate streamlining efforts utilized and recommended for other federal agencies and examine their military base broadband deployment permitting practices on DoD real estate. DoD agencies should streamline their spectrum clearance processes.
    • Deploying broadband is not within the meaning of prohibiting commercial use of land developments funded by federal grants.

  • Model Code for States

  • Model Code for Municipalities

  • The rates and Fees Ad Hoc Committee has made available a preliminary report.

Reaction to Recommendations

FCC Commissioner Mignon Clyburn delivered remarks on the second day of the BDAC meeting, saying she was unimpressed by many of the recommendations, particularly with how “the concerns of localities do not appear to have been fully addressed.” Commissioner Clyburn believes the committee is too industry-focused when it comes to solutions for closing the digital divide:

[W]hile I appreciate the BDAC’s acknowledgement that public-private partnerships may provide solutions to bridge those divides, I noticed that there was an expressed preference for industry over municipalities in broadband deployment efforts. As I have said many, many times before, one size does not fit all, and private industry infrastructure investments do not always flow to communities that are most in need. Therefore, I will continue to ask for municipalities to be allowed to deploy a broadband network, if that best suits the needs of the people they are elected and appointed to serve.

However, Commissioner Clyburn did offer some praise, saying, “Despite these concerns, I do welcome the inclusion of language in the committee’s Model Codes for States and Municipalities that supports eliminating digital divides between urban and rural areas and allocating resources to drive broadband adoption.”

Route Fifty’s Mitch Herckis also expressed concern about the recommendations related to publicly-funded municipal broadband and preemption of state and local authorities.

Mayor Liccardo, one of the few local government representatives on BDAC, said that he thought the committee’s draft recommendations were trying to “steamroll cities” in favor of industry. He pointed to the draft model law that would give states power over permitting for wireless broadband infrastructure at the expense of cities’ interests. He also claimed that municipal members of the committee have been restricted from sharing internal documents with their public sector colleagues “while the same limitations did not apply on the industry side.”

In a surprise move, Mayor Liccardo announced his resignation from BDAC on Thursday, sending Chairman Pai a resignation letter filled with pointed quotes: 

  • "[A]fter nine months of deliberation, negotiation, and discussion, we’ve made no progress toward a single proposal that will actually further the goal of equitable broadband deployment. Although we've adopted principles that pay lip service to that objective, not a single one of the draft recommendations attempts to meaningfully identify any new or significant resources to promote digital inclusion."
  • "One working group, which did not have a single municipal representative among its 30+ participants, created a draft model state code that included provisions to eliminate all municipal control over when, how, and whether to accept industry applications for infrastructure deployment. Another working group had an industry representative dramatically re-write its draft municipal code in the 11th hour, pushing aside the product of months of the working group’s deliberations."
  • "[T]he industry-heavy makeup of BDAC will simply relegate the body to being a vehicle for advancing the interests of the telecommunications industry over those of the public. The apparent goal is to create a set of rules that will provide industry with easy access to publicly-funded infrastructure at taxpayer-subsidized rates, without any obligation to provide broadband access to underserved residents."

The BDAC Formula: Industry Policymakers In, Industry Policy Out

Mayor Liccardo joined Kevin Pagan -- the City Attorney of McAllen, Texas -- and Miguel Gamiño Jr -- the Chief Technology Officer of New York City -- in a "Minority Report" that warned that BDAC has "failed to live up to its mission". The Minority Report criticizes the industry-heavy BDAC structure, but also raises an important point about the legality of the recommendations:

There is much to be recommended in the reports developed by [BDAC]...But the reports are grounded in a flawed theory that the FCC possesses certain legal authority that we believe, and a review of case law will affirm, that it does not possess. Moreover, because state and local interests were far outnumbered in both the BDAC itself and on the various working groups, the proposed “consensus reports” more often than not reflect only industry’s interests while turning a blind eye to the position of municipalities. In some of the reports, capturing this legal conflict in footnotes was not workable as the legal fiction of the Majority was the basis for almost every recommendation buttressed with a threat of preemption should state or local government not toe the line or act in the timelines outlined by the Majority...

What was originally communicated as a broad mandate to find collaborative solutions has been handicapped by a fundamentally flawed structure which failed to balance the interests of all stakeholders ... and has resulted in recommendations in favor of industry favored solutions.

The Minority Report claims that BDAC's proposed actions exceed the FCC's authority, in different ways. It claims that the FCC lacks the legal authority to mandate access to public assets for wireless providers. Without straying too far into the legal weeds, this is because the BDAC recommendations propose actions which are not permitted under certain sections of the Communications Act. The Minority Report claims BDAC cannot take action due to the FCC's decision to reclassify broadband Internet access service as an information service. "The Commission cannot regulate information services because of their impact on broadband services -- just such an effort was overturned when the Commission attempted to adopt net neutrality rules pursuant to its ancillary jurisdiction." 

Furthermore, the Minority Report claims that the FCC's rate regulation of the public right-of-way is prohibited. "As a general matter, the Commission regulates communications; it does not have authority to regulate rates for access to public or private property or facilities that may be useful for communications, except where specifically granted."

Conclusion

We now have reports and recommendations from BDAC. But, given the over-representation of industry interests on the committee, it is not surprising to see these recommendations favor the private sector at the expense of community involvement.  Though his top priority may be closing the digital divide, it appears Chairman Pai’s approach is only widening the divide between providers and community leaders.

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By Robbie McBeath.

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