House Hearing Examines Streamlining Broadband Permitting

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Round-Up for the Week of April 17-21, 2023

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What challenges exist at the federal, state, and local levels that delay or burden broadband deployment?  How can Congress help expedite or streamline the process for broadband deployment? Is attaching telecommunications equipment on municipally or cooperatively-owned poles more difficult or expensive than on other poles? These questions motivated the House Commerce Committee's  Subcommittee on Communications and Technology hearing, Breaking Barriers: Streamlining Permitting to Expedite Broadband Deployment, on April 19.

The Infrastructure Investment and Jobs Act allocated billions of dollars in federal funding for broadband deployment through the National Telecommunications Administration's (NTIA) Broadband Equity, Access and Deployment (BEAD) Program. BEAD funds are expected to flow to states in the next year, so buildout—and permitting—timelines are even more important. BEAD requires grant funding to be spent within a certain timeframe, so extended permitting reviews could interfere with deployments.

The subcommittee is chaired by Rep. Bob Latta (R-OH). He opened the hearing, saying, "I firmly believe that the infrastructure bill was a missed opportunity to enact meaningful permitting reform that would have broken down barriers to deployment and stretched federal funding. Lengthy application reviews and excessive fees for deployment will only delay connectivity and increase costs, leaving behind those American families who lack reliable internet access. Without changes to the permitting process and meaningful oversight, all of this money set aside for broadband could be wasted. We cannot let that happen. Permitting reform is not just necessary to bridge the digital divide; it is necessary to help us continue to lead the world in next-generation wireless technology."

Barriers to Broadband Deployment

As Republican subcommittee staffers noted, before broadband providers can begin construction for new or modified broadband infrastructure, they must secure zoning and construction permits, pay application fees, and conduct environmental and historic preservation reviews. This process often requires cooperation among federal agencies, state and local governments, and many times, the owners of utility poles. Unpredictable timelines for permit approvals and high fees for processing applications can make projects more expensive. The subcommittee staff identified three types of barriers to address.

1. Federal Barriers: Congress directed federal agencies to develop one or more master contracts to govern the placement of broadband infrastructure on property owned by the federal government, use a common application form, and established a 270-day shot clock for federal agencies to process applications to place communications facilities on federal property. But reviews often last beyond 270 days. The National Historic Preservation Act and the National Environmental Policy Act of 1969 complicate broadband infrastructure deployment and, according to the U.S. Chamber of Commerce, created obstacles to deployment projects due to permitting application costs and lengthy reviews.
2. State and Local Government Obstacles: State and local governments play a key role in broadband infrastructure deployment because regulate land use, review siting applications, and issue relevant permits. State and local governments’ review processes can be inconsistent with each other and costly, which can delay or even prohibit broadband deployment.
3. Pole Attachments: Deploying broadband infrastructure—particularly fiber infrastructure—sometimes requires access to utility poles.  Broadband providers attach their fiber, antennas, and other communications equipment to poles as they build their networks. The regulation of rates and terms and conditions for pole attachments differs depending on which entity owns a given pole.  Costs, zoning, and other local restrictions limit the construction of new poles. In some areas, cooperatives or municipalities own the only available poles. As a result, attachers face large discrepancies in pole attachment rates.

What Congress Heard

The hearing included testimony from Michael Romano, Executive Vice President at the NTCA—The Rural Broadband Association; the Wireless Infrastructure Association's Michael Saperstein; former-Federal Communications Commissioner Michael O'Rielly; National Rural Electric Cooperative Association Senior Vice President Louis Finkel; and Electronic Frontier Foundation's Ernesto Falcon.

Romano stressed the need to accelerate and make more efficient permitting procedures in the deployment of rural communications networks to benefit millions of Americans still in need of better broadband connectivity. He predicted that expanded efforts to deploy broadband networks will lead to much greater demand for permits and approvals that threaten to exacerbate existing backlogs and could undermine a shared national objective of universal connectivity. Romano encouraged Congress to help address such concerns by moving forward with streamlining measures and to take several other steps that would help in planning proactively for the wave of broadband deployments to come. 

Romano endorsed the following draft bills under consideration at the hearing:

• Barriers and Regulatory Obstacles Avoids Deployment of Broadband Access and Needs Deregulatory Leadership or “BROADBAND Leadership” Act. The draft bill, championed by Rep. Morgan Griffith (R-VA),  would streamline permitting processes for telecommunications service providers by preserving state and local zoning authority subject to reasonable limitations, like shot clocks and cost-based fees, to ensure providers receive an answer on their applications in a timely manner.
• Broadband Expansion and Deployment Fee Equity and Efficiency or “BEAD FEES” Act. The draft bill, led by Rep. Rick Allen (R-GA), would require states accepting federal BEAD money to ensure that application fees charged by state and local governments are transparent, competitively neutral, and cost-based.
• Reducing Barriers for Broadband on Federal Lands Act. Rep. Russ Fulcher (R-ID) is working on the draft bill that would remove the requirement to prepare an environmental or historic preservation review for the deployment of broadband projects on previously disturbed federal lands.
• Timely Replacement Under Secure and Trusted for Early and Dependable Broadband Networks or “TRUSTED Broadband Networks” Act. This draft bill, championed by Rep. Brett Guthrie (R-KY), would remove the requirement to prepare an environmental or historic preservation review prior to removing and replacing network equipment that puts our national security at risk.

In addition to the legislation, Romano said NTCA members hope Congress will also consider:

• Ensuring that the streamlining intended by the various measures will apply across network deployments of all kinds to the greatest extent possible and practicable.
• Working with federal agencies to determine what levels of staffing, training, and systems development are needed to process not only the backlog of permit applications already before them but to handle the crush of requests likely to come as BEAD and other efforts accelerate in the months and years ahead.
• Ensuring that railroad crossings do not continue to present barriers to broadband deployment

Michael Saperstein of the Wireless Infrastructure Association testified that " our broadband future depends on continuing to remove barriers to infrastructure deployment, largely permitting related." He urged Congress to:

• Ensure the expedient deployment of wireless communications on federal lands.
• Consider exemptions to the National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA).
• Reform the Federal Aviation Administration’s (FAA) obstruction evaluation process.

Saperstein also encouraged the National Telecommunications and Information Administration to continue to provide resources for communities on how to streamline their existing processes.

Former FCC Commissioner Michael O'Rielly now runs his own consulting firm that works with telecommunications and technology firms. He said the subcommittee should consider three activities to improve broadband availability, including improving the process which broadband companies must go through to actually build and deploy broadband networks. 

Representing the National Rural Electric Cooperative Association, Louis Finkel endorsed the:

• Reducing Barriers for Broadband on Federal Lands Act
• Facilitating DIGITAL Applications Act. The draft bill, led by Rep. Mariannette Miller-Meeks (R-IA), would require the NTIA to update Congress on whether the Departments of Interior and Agriculture have established an online portal for the acceptance, processing, and disposal of the common form application to deploy a communications facility on federal property.
• Connecting Communities Post Disaster Act. Rep. Neal Dunn's (R-FL) draft bill would accelerate replacing and improving communications facilities in Presidentially-declared disaster areas.

However, he testified that if the FAIR Poles Act were enacted, "it would dissuade electric cooperatives from participating in recently created federal programs aimed at supporting broadband infrastructure deployment in high-cost rural areas." The FAIR Poles Act would remove the municipal/cooperative exception to pole

attachment regulation from entities that have received federal broadband support.

Ernesto Falcon testified about the Electronic Frontier Foundation's research on the future of broadband access in the U.S, specifically on two questions: 1) What does 21st-century access to the internet look like, and 2) What were the mistakes we’ve made in past policy decisions that prevented us from being there now?

"The answer to the first question is straightforward, fiber optics," he said. "Fiber infrastructure underlies all advancements in broadband access today from satellites to fixed wireless to wireline."

On the second question, Falcon warned that deregulation efforts in the past "gave us digital redlining problems even in areas that were completely profitable to serve in the long run."

He suggested the subcommittee's goals should be providing private, public, and non-profit sector applicants with predictable timelines as well as standardized fees when accessing federal and state lands.

Falcon endorsed the Broadband Incentives for Communities Act (H.R. 1241), introduced by Rep. Lizzie Fletcher (D-TX) earlier this year. The bill would require the NTIA to establish a grant program to assist local governments and Indian tribes with efficient review and approval of zoning or permitting applications that facilitate the deployment of broadband infrastructure. He also strongly supported the Community Broadband Act (H.R. 2552), introduced by Rep. Anna Eshoo (D-CA) and 12 cosponsors. Twenty-one states have passed laws that either restrict or outright prohibit local communities from investing local dollars in building their own broadband networks. The Community Broadband Act nullifies state laws that inhibit local governments from building their own broadband, preserving the right to self-determination for local communities.

Falcon and other witnesses also asked Congress to allocate more money for the Affordable Connectivity Program (ACP). In the Infrastructure Investment and Jobs Act, Congress allocated $14.2 billion for the ACP, but observers say that funding could run out in 2024. Falcon said extending the ACP could “radically change” the calculations operators make when deciding where to deploy their networks because they would be able to count on long-term revenue from customers who might otherwise be unable to afford broadband service.

Former-FCC Commissioner O’Rielly said, "I’d like to see Congress add more funds to it.” Absent the program, he warned there will be a “portion of American families that will be challenged by the budgets that they face” and will be unable to afford broadband. The cascading impacts will touch not just consumers, but local government and business entities as well, he said.

What Happens Next

The subcommittee is considering 32 bills that address broadband deployment, many of which, as noted above, are still drafts that have not been introduced in the House. Over the next couple of months, the Republican majority on the subcommittee is likely to agree on a package of bills to advance to the full House Commerce Committee. Even without bipartisan support, bills could advance through the House and be sent to the Senate. But any legislation will need bipartisan support to be approved by the closely divided Senate.

Quick Bits

• USDA Offers New Funding to Promote the Expansion of High-Speed Internet in Rural Areas (Department of Agriculture)
• FCC allows access to Broadband Serviceable Location Fabric to conduct non-commercial academic or public-policy research (FCC)
• FCC extends for two years support for providers in Puerto Rico and the U.S. Virgin Islands (FCC)
• FCC Leadership Renews Call to Restore Spectrum Auction Authority (FCC)
• State Governments Continue to Add Digital Equity Staff (Government Technology)

Weekend Reads (resist tl;dr)

• How States Ensure Broadband Funds Go Where They’re Most Needed (Pew Charitable Trusts)
• Municipal Broadband 2023: 17 States Risk BEAD Funding Delays (BroadbandNow)

           See also: States, NTIA say municipal broadband laws won’t delay BEAD funding (Fierce)

ICYMI from Benton

• Benton Institute Announces Inaugural Cohort of Opportunity Fund Fellows
• Promise, Perils and the Big Switch Ahead for AI and BEAD
• Will Maryland be the Tesla or the Solyndra of the BEAD Program?
• Internet for All in California
• Broadband is Key to Pennsylvania's Future
• Another Knife in the News

Upcoming Events

April 27—Connected Cities Tour (Dense Networks)

May 1-4—Broadband Communities Summit 2023

May 18—May 2023 Open FCC Meeting

May 22—Indigenous Connectivity Summit 2023 (Connect Humanity)

June 5—RightsCon Costa Rica (AccessNow)

June 5—UTC Telecom & Technology Conference

June 8—June 2023 Open FCC Meeting

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