Hot-Button Debates Over Local Control Could Be Part of Telecom Act Update Debate

A preemption would hit at the heart of state authority, said Bramble, also vice president of the National Conference of State Legislatures. And weakening municipalities’ authority over cell facilities siting, is a “big issue for all local governments,” said Tallahassee, Fla., Mayor John Marks, vice chairman of the U.S. Conference of Mayors transportation and communications committee. “We know better what’s best for our communities than the people in Washington, D.C.” Officials at associations representing legislatures, cities and counties cautioned that none have formally taken up goals for a Telecom Act rewrite, but they identified the issues as those at the top of their agendas.

The possibility of FCC preemption raised the concern of the National Conference of State Legislatures and fiscally conservative interest groups when it was brought up by FCC Chairman Tom Wheeler (CD Feb 20 p1) in the wake this year’s U.S. Appeals Court for the D.C. Circuit reversal of some net neutrality rules. Utah, among 19 states with anti-municipal broadband laws (CD March 3 p8), has seen municipal networks become a visible concern and is home to controversial municipal broadband projects Utah Telecommunications Open Infrastructure Agency (UTOPIA) (CD Feb 25 p10) and iProvo (CD June 5 p10). “Municipal broadband [projects] are experiments that have failed,” said Bramble.

"Governmental networks have had huge costs, and states have had to exercise their powers to protect taxpayers from debt and higher taxes,” said John Stephenson, director of the American Legislative Exchange Council’s communications and technology task force. ALEC has drawn model anti-municipal broadband legislation for states. Opponents of pre-emption would find a receptive audience in Congress, Stephenson said. “Members of Congress, who are generally concerned about government overspending and risky government ventures in the private sector, would probably be concerned about government overspending and risky ventures affecting taxpayers at the local level.” Congress would be interested in undoing an FCC preemption, said Seth Cooper of the Free State Foundation. Preemption “wouldn’t just substitute state law with federal law,” he said. “Rather, it would confer on local governments a right against the states that created them. Rendering local governments legally separate and unaccountable to the states on the issue of local government-provided broadband would be strangely anomalous from a constitutional standpoint."

While some members of Congress are protective of states rights, many see a strong role for the federal government in telecom and would be supportive of preemption, said Christopher Yoo, director of the University of Pennsylvania Law School’s Center for Technology, Innovation & Competition. He cited federal authority over spectrum. Proponents of municipal broadband also will have its congressional allies, who, like Wheeler, view municipalities as a vehicle in expanding broadband, said Public Knowledge Senior Vice President Harold Feld. He said Sen. John McCain, R-Ariz., proposed legislation in 2006 that would have guaranteed cities the right to build municipal communications networks. The legislation was unsuccessful, but Feld said the demand for municipalities to fill the gaps left by private companies has grown since then. When McCain introduced the previous versions of the Community Broadband Act, Feld said “broadband providers could credibly say ‘we're deploying! We'll get to you, don’t worry.’ Today, that’s just not credible."

Cell Facility Siting Concerns Mayors

Bramble said he’s aligned with municipalities on the ongoing debate over cell tower siting. The FCC is considering how to implement a section in the Spectrum Act that says state and local governments must approve eligible facilities’ requests to change the size of their gear. Wireless companies, before the FCC and in state legislatures, have sought to codify interpretations of the language to further weaken municipal authority, saying local processes are hindering broadband deployment (CD April 3 p15). PCIA-The Wireless Infrastructure Association is “confident that the FCC will take proper action to streamline broadband deployment consistent with Congress’s intent,” said Director-Government Affairs Jonathan Campbell.

Municipal telecom lawyer Gerard Lederer of the Best Best firm, who’s representing the Conference of Mayors that wants cell tower siting to be a local issue, said cities are focused and hopeful about convincing the FCC to preserve municipal authority, and members of Congress would be sympathetic to preserving local control. Cell facilities appear to be going up without much problem, and members of Congress are familiar with the community impacts cities are concerned about, Lederer said. “They all have mothers and spouses and children living in the communities, too.” Local governments have a legitimate authority over what gets built in their communities, and oversight is simply part of the democratic process, said Bramble. “God bless America. If we wanted to run an efficient model, there are plenty of different models. Dictatorships can run really efficiently."

Stephenson said Congress has shown sympathy toward deregulation by approving the Spectrum Act. Though Congress didn’t go further in its last foray at cell facilities deregulations, he said if local governments don’t more quickly approve wireless infrastructure, pressure for further deregulation “is going to grow as more and devices come on the market and make people want to know why they're not working better. And the answer is City Hall, not the carriers."

Yoo said he wouldn’t “be surprised to see a lot of money spent on lobbying” on the issue. PCIA members like AT&T and Verizon, which had no comment, are among the top federal contributors in the communications industry, according to the Center for Responsive Politics (http://bit.ly/1hdZMPF).