Local Officials Mixed on BDAC Direction After November Meeting

“Although the voices are few in terms of local government, we are certainly vocal in those meetings,” said Huckaba Thursday. “The people in the room care about what we have to say. They’re not just brushing it off or giving lip service.” Huckaba said he would probably sign onto recommendations, “assuming the process continues the way it’s been going.” The committee worked long hours “and my hope is that we come out of the backend of this with really some substantial stuff that matters,” he said. The FCC didn't comment.

BDAC greenlit some recommendations at its Nov. 9 meeting, but left others for a Jan. 23-24 meeting (see 1711090054). The committee is close to finishing and January seems realistic, though working groups need more time on some harder questions, Huckaba said. Many tough questions went unanswered at this month’s meeting because members couldn’t reach consensus, said state commissioners’ lone BDAC member Karen Charles Peterson at the NARUC conference last week (see 1711140048). Localities are trying to raise their voices with only three representatives on the 30-member BDAC (see 1711060031).

Local governments might be neutral on BDAC recommendations, local government attorney Ken Fellman said in a Friday interview. After participating this year in state legislative negotiations that led to local governments voicing neutrality on a Colorado small-cells bill, Fellman is “cautiously optimistic” about a similar outcome on BDAC. But some local governments will be upset no matter what, and nothing requires the FCC to follow its recommendations, warned the former NATOA president.

Not Everyone Happy

The Nov. 9 meeting didn’t alleviate concerns about membership, said Fellman, saying the committee punted on the toughest issues. Local government representatives are working hard and appear to be heard by other members, but it remains “patently unfair to have the number stacked the way they are,” Fellman said. If people “retire to their corners” on a tough issue like local fees, he said, “we know how the vote’s going to go.”

The New Jersey State League of Municipalities sounded an alarm in a resolution passed Thursday at its annual meeting in Atlantic City. It “urges all members of the New Jersey Congressional Delegation to oppose, with voice and vote, any proposals, either through legislative or regulatory action, to label local regulation as a barrier to broadband deployment or/and preempt local authority over zoning, permitting, and rights-of-way regulations.” Executive Director Michael Darcy told us his group feels the panel is "overloaded with industry representation and we're concerned about that.”

The BDAC meeting was “worse than imagined,” said Best Best’s Gerard Lederer, a local government attorney. It was “nothing but an industry wish list that will be adopted based on majority rules votes and without regard to the limited authority of the commission to take some of the actions they promote,” he said.

“There was a mix of good and awful policy on the table,” blogged Tellus Venture Associates President Steve Blum, who advises local governments on telecom issues in California. “Although there are nuggets [of] sound policy to be found, what it came up with mostly reads like wish lists written by telecoms lobbyists.”

Sticking Points

“This shouldn’t be about us winning or industry winning,” Huckaba said. “This should be about the people winning.” Local governments in the minority “have to understand that you can’t just put your stake in the ground and expect everything to go well,” he said.

Local officials don't have the votes on “sticky issues” like how fees are calculated, Huckaba said. Industry wants a cost basis and cities prefer market-based, and “if we came down on a vote today, because of the numbers, it would be clear how that would come down.” Huckaba challenged the group to do more work on that topic, and the committee agreed to set up a subgroup to do more analysis, he said.

Pre-emption “is an interesting topic that the group is not quite ready for,” with strong opinions on both sides, Huckaba said. FCC Commissioner Mike O’Rielly supported pre-emption at the meeting, but Huckaba thinks he has made progress convincing the BDAC it should be a last resort, he said: When you pre-empt, “you avoid the harder work, and it will just keep coming up again and again.”

Lederer asked why the committee identified no problems with industry or FCC practices, including incomplete applications and uncertainty about RF emissions. “The concept that Section 253 does not apply to wireless deployments is nowhere to be found, nor is the understanding that local governments have property rights that are protected under the Constitution,” Lederer said of the Communications Act. “They were even debating if local governments have the right to require facilities in the rights of way to be moved for a public purpose,” a point that appeared to offend power utilities that are traditional ROW occupants, he said.

It’s a lot of work and BDAC members “are feeling weary,” said Huckaba. The part-time city councilmember also runs a business and said the National League of Cities pays for his plane and hotel expenses related to BDAC: “But we’re pushing toward something bigger and better here.”