LOCALITIES OPPOSED TO FEDERAL ACTION ON RIGHT-OF-WAY ISSUES
Local govts. will oppose any federal action to harmonize public rights-of-way (ROW) regulations to spur broadband deployment, but will consider state legislation on lines of recently enacted Mich. ROW legislation. That was view that emerged from Washington panel Thurs. organized by Advisory Committee to Congressional Internet Caucus at which industry called for broad national action to lay down contours of “appropriate” local govt. management of ROW and assessment of fees. What’s needed is dialog between local govts. and industry and not one-size-fits-all approach, said Marilyn Praisner, vice chmn. of FCC’s Local & State Govt. Advisory Committee (LSGAC). While problem of delays in granting permits and charging ROW fees in excess of actual costs is “selective,” it has developed into one of national scope and calls for national action, said Martin Stern, co-founder of Telecom Industry Rights-of-Way Working Group (I-ROW).
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Praisner, member of Montgomery County (Md.) Council, said local govts. should “continue to look at” Mich. model, although some communities in that state have concerns about low rates and one-time permits. State govt. managing ROW also would pose problems because it wouldn’t have same understanding of issues as local govts., she said. Nelson clarified that under Mich. law state didn’t manage ROW but collected fees only on behalf of localities for ROW use. Mich. process was “conceptually” good and merits consideration as model, Praisner said: “I don’t believe we need to go to the federal level to address the issue.” Problem, she said, was that industry had not made any attempt to work with local govts. to resolve ROW issues. On contrary, “we have seen them working around local governments and not with local governments,” she said. Until last week’s LSGAC meeting, industry had made no attempt to work with local govts., Praisner said.
“We hope it [Mich. law] will be model for other states,” Mich. PSC Comr. Robert Nelson said, although certain aspects of legislation might not be appropriate for other states. Legislative action was prompted by some local govts.’ charging fees unrelated to ROW management, delays in processing of permits and setting conditions for permits that resulted in delays, he said. Mich. law provides for nondiscriminatory fee of 5 cents per linear foot, no additional fee for cable’s providing telephone services or other services and 45-day turnaround period for processing permits, he said. Nelson said measure was “balanced” legislation that addressed concerns of industry and communities.
Saying ROW access was critical to broadband deployment, I-ROW’s Stern said national solution was needed to take issue out of “ad hoc” processes of 36,000 communities. Industry would like to see reasonable fixed period for processing permits, compensation to local govts. based on actual direct costs and ROW access to providers for next-generation networks, he said. Praisner said compensation for ROW use involve not only cost of processing permit applications but also cost of maintenance. Otherwise local govts. and tax payers will end up paying for costs arising from slicing up of roads, she said. “We are talking about rent to use the rights-of-way, not the ability to be in the rights-of-way. And they are 2 different issues. Compensation is an ongoing cost, not just permit fees,” Praisner said. Cox Vp-Public Policy Alexandra Wilson said cable didn’t face same ROW problems as other telecom providers, but delays resulted occasionally when operator wanted to provide additional services.
Pressing for federal intervention, Stern said that even in states such as Mich., Cal. and Colo. that had “good” laws, municipalities could, if they chose to, hold up permits, charge high fees based on revenue and require regulatory oversight of operations. He said he wasn’t suggesting that federal law dictate every aspect of ROW management but wanted it to provide “contours of appropriate management and fees” and leave it to individual communities to decide what actual costs were. On FCC classification of cable modem service as information service, Praisner said Commission wanted local govts. to continue to deal with customer complaints on quality of service, but they didn’t have capacity to regulate service or resources generated from franchise fees on cable modem service to hire personnel to deal with complaints. There’s “conflicting perspectives” from FCC on how to deal with issue, she said.
Meanwhile, I-ROW urged FCC to start proceeding to address local govt. practices and fees that constituted barriers to entry under Sec. 253 of Communications Act, according to ex parte filing on meeting of I-ROW members with LSGAC members and Commission staff. Group said issues that proceeding should address included: (1) Delays in granting permits and refusal to issue permits in effort to “extract” above-cost fees and other concessions unrelated to ROW management. (2) Level of compensation that local govts. could demand consistent with “fair and reasonable” compensation standard in Act.