BDAC Nearing Finish Line on State Model Code, Despite State, Local Concerns
The FCC Broadband Deployment Advisory Committee moved forward Thursday on work left over from its July meeting (see 1807270020), approving more parts of its model code for states. BDAC will meet again Friday, getting the first update from its Disaster Response and Recovery Working Group. Parts of the code OK'd on divided votes remain controversial. BDAC went further than the FCC did in a September infrastructure order in clarifying that absent local action a facility is “deemed approved.”
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BDAC Chair Elizabeth Bowles opened the meeting telling the group it really must wrap up the state code. “We made a great dent the last meeting and need to get it across the finish line,” Bowles said. “It’s hard to believe we started 20 months ago,” she said: BDAC has “a lot to be proud of and a lot more work to do.”
Parts of the work remain contested. Some members questioned whether the panel should completely strike the code's article nine. It says local authorities can't prohibit, regulate or charge for the construction or collocation of communications network facilities and communications network support structures through any law or practice.
Some members questioned whether the article is relevant given a September order aimed at faster siting of small cells across the U.S. by tightening time frames for local authorities to address applications and reducing local control of zoning decisions (see 1809260029). Legal challenges are in court (see 1811060046).
“When the FCC put out the September order, they addressed a lot of these issues,” said Allen Bell from Georgia Power. BDAC could cause confusion, he said. “I think the FCC considered the BDAC’s position,” Bell said. “There are a lot of people around this table who worked on the September order and got it worded the way they want it.” Nearly half the states have approved rules, he said. “It’s not like we’ve been working in secret.”
This is a federal advisory committee whose job is to provide advice to the FCC, said David Don, vice president-regulatory policy at Comcast. “We’re advising [the FCC] on something they’ve already decided.” Why would BDAC provide any advice different from the September order, he asked: “What is the point of that?”
“There’s not a requirement that this body agree with the FCC,” said Charles McKee, Sprint vice president-government affairs. “This body is making a recommendation and it’s making a recommendation specifically on a state model code. … This is the heart of what we’ve been negotiating for the last year.”
Lockstep
“We’re not bound to march lockstep with the FCC,” said Kelly McGriff, general counsel at Uniti Fiber. “We’re creating a model code to be pushed out to the states.” What the BDAC does is important, he said: “People are watching what we’re doing and talking about it.” The September order isn’t “the final word,” he said. “It’s already being litigated. What we’re doing is adding our voice to a discussion. I would hate for all of our work on this to come to naught because we just decide to now mute ourselves.”
The group approved deemed-granted language, phrased as a deemed-approved remedy, which was omitted from the September order. Members voted 18-6 to leave the language in place.
The language puts BDAC “in conflict” with the FCC, said Comcast's Don. It's "very concerning.”
The state code will apply to smaller municipalities that don’t even have a staff lawyer and the provision will create problems, said David Young, vice chair and from Lincoln, Nebraska. “You don’t have deemed-approved water permits. You don’t have deemed-approved housing/building permits.”
The FCC supported deemed granted as a remedy but found it didn’t have the jurisdiction to require it, said Chris Nurse, AT&T assistant vice president-external affairs. “What they found jurisdiction for was to drag municipalities into court any time they miss a small-cell application deadline. … That is just an insane social outcome.”
“The FCC didn’t go to deemed granted because of its perception of its legal jurisdiction,” but that doesn’t apply to the states, said Jonathan Adelstein, Wireless Infrastructure Association president. “This type of language will make a large bureaucracy pay attention and get things done,” McGriff said. “What I’m hearing all over the country is, ‘We don’t have enough people to process these permits and there’s just no way we can get to your stuff and it’s going to be months and months and months.’”
Andy Huckaba, Lenexa, Kansas, council member, complained about the model code's shot clock provisions. “Don't kid yourself in thinking that the device of the shot clock improves the process,” Huckaba said. “It doesn't. It just squeezes it.” As more applications come in, “the full burden is on local government to figure out how to get it done in that period of time,” he said.
BDAC approved a revised article seven, requiring new and modified infrastructure to be broadband ready. A key section added Thursday says state enforcement authority shall promulgate all rules and regulations necessary for the enactment and enforcement of this article. Members approved it 19-4, with one abstention. The group also approved article eight, which requires buildings and network access points to be broadband ready. The vote was 16-8.