BDAC Approves Harmonized Muni Code, Headed to Approval of State Code

BDAC officials predicted both codes would pass at what would likely be a contentious meeting (see 1807090010). Like at the April meeting where the group gave preliminary clearance to the codes, discussions this week took longer than expected (see 1804250064).

Commissioner Brendan Carr briefly addressed BDAC. “It's not a well-compensated job and it’s in addition to your day job,” Carr said. “I’m glad that we all are rowing in the same direction, whether it’s local officials, governors, county officials, providers. We’re all trying to get more broadband for communities.”

Members noted FCC work on infrastructure isn’t waiting for BDAC, with an item on one touch, make ready and moratoriums set for a vote next week by commissioners (see 1807120053). BDAC is to hear Friday from its Rates and Fees Ad Hoc Committee, which asks “what constitutes reasonableness” and “how does one set fees that are considered reasonable by all parties involved?” BDAC Chair Elizabeth Bowles said the work of that committee is critical to the work of the full committee.

“The essence of small cells is people want their 5G and eventually there's going to be an uprising and they are going to get it,” said Chris Nurse, who represents AT&T on BDAC. “We are trying to have that happen before the revolution,” he said. “Everything we are doing here is essentially trying to accelerate deployment of broadband to people so that they get what they want because of the lead time to deliver it.”

“We’re here today with a better work product all around,” said David Young, BDAC co-chair and city official from Lincoln, Nebraska, as the muni code discussion started. “A lot of the changes are minor. I will have a couple of very, very friendly amendments.”

BDAC officials said initially they hoped addressing changes to the muni code would take two hours, but it took more than five as members went over possible revisions to nearly every section of the code.

State Code

“It is hereby declared to be the public policy of this State to encourage the development and deployment of broadband infrastructure to better serve the public and further industrial economic development in this State,” the state code begins. “The State recognizes that both fixed and mobile, including satellite, broadband infrastructure are a necessary foundation for an innovative economy.”

BDAC is voting on the state code by section. One and two, the preamble and definitions, passed, over no votes from Karen Charles Peterson, a Massachusetts commissioner, and Brian O’Hara from the National Electric Rural Cooperative Association. O’Hara said BDAC incorporated some changes his group proposed but he still disagreed with including electric co-op poles. That's “contradictory to the 20 states that have passed small-cell codes,” he said. “I want to put that on the record.”

In a late vote, members voted 14-11 to strike article 3 of the state code, which would have had states establish network support infrastructure register containing the data of all available network support infrastructure in the state. BDAC also took out parts of other sections tied to article 3.

Apartment associations slammed a part of the model state code that would give communications providers the right to access and install facilities in multifamily residential buildings and require broadband facilities in new and renovated buildings at the property owners' expense. It goes beyond BDAC’s charge because it doesn’t remove or reduce regulatory barriers, said the National Multifamily Housing Council and the National Apartment Association in a Thursday letter to the FCC and BDAC chairs in docket 17-83. “It would regulate or even replace existing contracts negotiated between property owners and broadband service providers.” The proposal was made without input from the rental apartment or real estate industries, which have no BDAC members, the associations said.

State, Muni Concerns

Debate included on how the state code should approach fees and whether it should codify rates and fees. “Broadband is so important to my rural area,” said BDAC member Michael Hain of Nittany Media. “We’re losing kids” without broadband, he said. “We have companies that are closing because they can’t get broadband.” Hain said BDAC doesn’t need to codify fees because cities want broadband. Companies like Nittany will build in only areas where they feel welcome, he said.

Bowles argued against language requiring cost-based pricing for infrastructure outside the right of way. “This looks great on paper, but I don’t think it’s necessarily the best policy,” she said. She said BDAC needs to provide some guidance to legislatures on what BDAC thinks is fair. “We have a real opportunity here to move the needle,” she said.

“My problem with cost base is I’m waiting for it to be defined,” said member Larry Hanson from the Georgia Municipal Association. “I’m waiting to see the methodology. I’m waiting to see the formula so that I can have an informed opinion.”

On the muni code, BDAC members worked from a redlined version of the code and mostly approved the changes agreed to by a harmonization committee, which has been meeting on a weekly basis since May.

In a typical debate on the muni code, members discussed whether to restore to the language defining a pole, saying a pole must be “legally conforming or otherwise legally constructed.” BDAC initially approved the change on a voice vote and then, after more discussion, held a roll call vote where the change was defeated 12-10, with five abstentions.

Nurse objected. “You set the rules at the beginning of the meeting,” he said. “You took the vote. The vote is close to know you want to change the rules after you took the vote. That's not good procedure.” The "amendment fails, but now we have the process,” Bowles said.