Pai Vows FCC Action on BDAC Recommendations, as Localities Slam Advisory Committee

Such recommendations are “not academic,” Pai said in opening remarks. “Once you finalize them, we are going to take action.” The committee’s work “will help close the digital divide and help extend digital opportunity to all Americans,” he said. BDAC continues meeting Wednesday.

Several local members offered a “minority report” Tuesday questioning the validity of much of the work. It was signed by BDAC member Sam Liccardo, mayor of San Jose, plus New York City Chief Technology Officer Miguel Gamino and Kevin Pagan, city attorney of McAllen, Texas, who are members of working groups.

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,” the minority report said. It questioned whether the FCC has the legal authority to mandate wireless providers access to public assets: “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.”

Local government officials complain they are underrepresented on the group (see 1712070047). “Given the billions in potential harms, and the limited potential benefit, there is every reason for BDAC to encourage the commission to exercise restraint,” the report said. It noted that in some cases, localities had no representation. “Local government has no representative on the Model Code for States Working Group,” the document said. “Local government representatives on the BDAC have not yet seen that group’s final recommendations, and request leave to amend this report to include our response.”

Commissioner Mignon Clyburn slammed the model code for states, released Tuesday. “What’s buried on pg 50?” she tweeted. “Language discouraging #munibroadband. So much for this agency’s claims of promoting competitive options.”

One Touch

AT&T and Massachusetts Commissioner Karen Charles Peterson voted no on OTMR recommendations by the Competitive Access to Broadband Infrastructure Working Group. Three others abstained.

OTMR would allow one third-party contractor to move all existing attachments to make room for new facilities in one visit, rather than having companies take turns separately moving. The commission should “compel all jurisdictions,” including municipal utilities, rural electric cooperatives and reverse pre-emption states to do OTMR for simple jobs where there isn’t expected to be outage, damage, relocation of wireless equipment or other issues, the working group recommended. For more complex work, OTMR wouldn’t be required and more time would be allowed.

The FCC should adopt clear qualification requirements for contractors to ensure safety, the working group said. Pole owners and attachers could suggest contractors to be qualified for an approved contractor list. Owners could add requirements if they are tied to safety or reliability and are nondiscriminatory, it said. New attachers would have to immediately notify pole riders if any damage occurred. BDAC agreed to extend to 25 days a proposed 15-day shot clock for approving new attachers to come in with a contractor.

AT&T objected, concerns including potential damage to incumbent equipment and business and reputational consequences if mistakes occur. The carrier can speed make-ready processes to 45 days, said Assistant Vice President-External Affairs Chris Nurse. Recommended requirements could violate AT&T bargaining agreements with its union workers, he said. The telco voted against an item meant to enhance the self-help process for when pole riders don’t perform make-ready quickly, with Nurse protesting lack of indemnification language so AT&T can recover damages if it loses millions of dollars from botched work.

A Google Fiber official doubts incumbents could speed up the process if they are taking turns moving equipment. “Time is the key” for new entrants, said Head-Policy John Burchett. Having an approved list of contractors would ensure they are qualified, and they wouldn’t be biased to attachers over incumbents because they wouldn’t want to be sued, said Working Group Chair and Crown Castle General Counsel Ken Simon.

Burchett complained that AT&T waited until the final BDAC meeting to make counter proposals after the working group worked on the one-touch proposal for months: “It’s a really bad idea to … have this renegotiated at this point.” BDAC Chair Elizabeth Bowles agreed it’s not the venue to relitigate issues but noted that working group process wasn’t open, so public debate is valuable.

No BDAC member voted against the working group’s proposal to edit the definition of a complete application under the 2011 FCC pole attachment order setting a timeline for utilities to address complaints. After local and electric cooperative officials raised concerns, the group accepted an amendment to increase time frames from five to 10 business days for investor-owned utilities to deem an application complete and from three calendar days to five business days to consider resubmitted applications.

The panel unanimously approved a recommendation that would ask the National Rural Electric Cooperative Association to post contact information for statewide electric cooperative managers. BDAC unanimously cleared another proposal requiring utilities to allow pole attachers be present during a joint field survey to determine feasibility. No member voted against other proposals seeking further study on tapping E-rate funded broadband infrastructure for other community uses. The committee approved developing a common database of infrastructure projects, with four voting no.

Barriers

The FCC should encourage earlier and more collaboration between broadband providers and local officials by creating a “broadband ready” checklist and publishing model codes, said the Removing State and Local Barriers Working Group report. The FCC should clarify what's an excessive fee for right-of-way access and use and provide more fee transparency, it said. Fair and reasonable fees “implies some relation to the burden of new equipment placed in the ROW or on the local asset, or some other objective standard,” the report said. The agency should consider a streamlined mediation and arbitration process run by a neutral third party, explain its approach to pre-emption decisions and bring in more experts, the group said.

The Federal Siting Working Group recommended standardizing and publishing fee schedules and using revenue to speed federal siting. Federal agencies with land should prioritize broadband permitting and have a 60-day shot clock to review applications, the group recommended. Federal agencies should use one standard application form that can evolve with technology, it said. Streamline and harmonize historic and environmental assessments across agencies, it said. Leases and easements should have typical commercial lease terms with renewals expected, the group said. Every project should have a clear government point of contact and each agency should have an online tracking mechanism for the permitting process, it said. DOD should streamline military base broadband permitting practices and spectrum clearance processes, the group said. Commercial use prohibitions on land funded by federal grants shouldn’t include blocking broadband deployment, it said. With the meeting running behind, BDAC delayed vote on the federal siting report until Wednesday morning.

BDAC approved the Barriers Working Group’s recommendations, with several local- and state-member votes against the fees and pre-emption sections. Broadband barriers include ambiguity about local processes, discrimination when localities levy fees without transparency, excessive fees, local government inflexibility to adjust review and approval processes, inordinate requirements or conditions and noncompliance by authority or an applicant with the rules and procedures, the report said.

Disagreements

"A lot of information, not a lot of prescriptions,” working group chair and TDS Telecom Director-Federal Affairs Bob DeBroux said of his group’s report. The proposal is “middle of the road,” said Sprint Vice President-Government Affairs Charles McKee.

The group couldn’t agree on how and when the FCC should pre-empt, said DeBroux. The report says, “Pre-emption is a remedy that should be deployed only after careful consideration, but which can play an important role in speeding broadband deployment.” Andy Huckaba, city councilmember from Lenexa, Kansas, applauded a tonal shift over the course of the working group’s talks from pre-emption to cooperation.

The working group couldn’t find consensus between industry and localities on what precisely is too high a fee, so it left that question to the working group tasked with a local model code, said DeBroux. Liccardo said the “primary question for cities is, what’s wrong with the market rate?” He and some other local and state members opposed the report. There’s no correlation between low fees and broad deployment, Liccardo said. Cities with higher demand charge higher fees and get more broadband, the mayor said. But Bowles said that principle doesn’t work for small communities that try to charge high fees. The BDAC working group on a state model code, which reports Wednesday, adopts a cost-based approach as better for deployment, said its chair, Southern Light General Counsel Kelly McGriff.

The recommendations may create additional barriers for states, said Peterson from Massachusetts. One is that it’s unclear on the for funding to implement ideas like having an ROW manager, the state commissioner said. DeBroux replied that specifics could be worked out later.