Harmonizing State and Muni Reports is Tough, BDAC Members Say as Meeting Looms

The reconciliation process is “very systematic” in finding and removing conflicts among documents -- primarily the state and municipal codes, said Andy Huckaba, harmonization group member and councilman from Lenexa, Kansas. Harmonization group’s members are more balanced between industry and government officials than the full BDAC, and committee Chair Elizabeth Bowles was “very purposeful in making sure” that would be so, Huckaba said. Many continue to say the full group is stacked for industry and against local interests.

The rates-and-fees committee is “working feverishly” to wrap recommendations, which will include better definition of what is a “reasonable” cost, said Huckaba, who chairs the group. “These are hard issues that nobody’s really been able to solve.” Disagreements between industry and localities often come down to terminology, he said.

FCC counsel raised transparency concerns and advised not to use data collected by the rates-and-fees group, said Huckaba and University of Pennsylvania professor Christopher Yoo. “The concerns involve potential problems under the Administrative Procedure Act and the Paperwork Reduction Act if the agency relies on the data,” said Yoo, who gathered data for the ad hoc group.

The FCC gave different advice before and after data was collected, “and it’s limited what we can do with the data in terms of our recommendations,” Huckaba said. Yoo “entered into some nondisclosure agreements to gather some of the data,” after vetting the approach with the FCC, but “it turns out we can’t really do that,” the Lenexa official said. “It’s not really that big of a deal. More time and funding would produce better data on rates and fees, he said.

Low Expectations

Blair Levin, a critic of the BDAC process, has low expectations.

“Given the make-up of the committee and the starting framework, I expect a recommendation that basically says cities should bear all the costs and carriers should get all the benefits of the process,” said Levin, of Brookings Institution and New Street. “Under what I understand the proposal to be, carriers will get the benefit of fee reductions even if they don't deploy everywhere in a jurisdiction or anywhere in a jurisdiction, as fees have to be carrier and technology neutral. I would love to be wrong, but boiled down it looks like a wealth transfer from the public to private enterprises without any obligation for the private enterprises to do anything.” Levin said the FCC should remember cities aren’t the major impediment to deployment and a one-size-fits-all solution will never work.

People in the municipal codes working group “generally believe our recommendations are much better than those from the state group,” said Richard Bennett, network architect and muni group member. Bennett said the most intensive work now is in the rates and fees ad hoc group, looking at major approaches of cost-based and market-based approaches and a revenue-sharing model, plus a few “creative” alternatives. “Industry obviously favors a cost-based approach, but some of the creative options seem to support a less-than-cost based model in order to speed up deployment,” Bennett said. “Carriers still have to bear the major costs of pulling fiber and installing antennas, but are freed of excessive rents in the models they most favor. The rates and fees group is still studying the proposals by San Jose, California, and New York City, even though they’ve officially left the group.”

The FCC didn’t comment Monday.

Contentiousness

A final BDAC meeting could be contentious, with many “strong personalities” around the table, Huckaba said. “I don’t think it will be quick,” but “ultimately we’ll vote.” Huckaba doesn’t know if the BDAC’s work will be done, he said. “I would have never guessed it to take this long.”

It will be “very long” and “contentious,” but also likely the last, said National League of Cities Principal Associate-Technology and Communications Angelina Panettieri. “I really get the sense that the commission wants this to be done.” It’s concerning that the ad hoc group won’t be allowed to study rates and fees, an area where data could do much to resolve disagreements, she said.

Cities enjoyed more balanced membership on the harmonization working group, compared with the wider BDAC, but it was “too little, too late,” said Panettieri. Harmonization probably won’t address local concerns about pre-emption or appropriate compensation for local rights of way, and there may still be late substantive changes to working group reports, she said.

State and local model codes “reflect the unbalanced make-up of the BDAC” and harmonization “seems unlikely to result in a balanced or even a particularly useful policy prescription,” emailed NARUC General Counsel Brad Ramsay. The FCC should permit the less-represented members to attach a minority report, he said.

“If the BDAC process continues down the same path, it will be a missed opportunity for a meaningful conversation about ways to expand broadband access in rural America,” said a National Rural Electric Cooperative Association spokesperson. “Just two of the 13 articles in the state model code specifically address rural issues,” and NRECA hopes edits will be made during harmonization and when the state model code comes up for a final vote, he said. NRECA CEO Jim Matheson is on BDAC.

The harmonization group faced a big job, said Doug Brake, member of the state code working group and from the Information Technology and Innovation Foundation. “There is of course a good deal of overlap between the municipal and state codes that has to be worked through,” Brake said. “The even bigger challenge is finding the balance between local control and streamlined access to infrastructure such that the code both gets real buy-in and actually serves to accelerate deployment.”

"We are hard at work preparing a complete set of recommendations that smooth over any inconsistencies in language from the previously approved BDAC documents," said Brent Skorup of the Mercatus Center. The preliminary report on rates and fees was "illuminating and I think many people are looking forward to their updated report," he said.