FCC’s State Broadband Model Remains a Work in Progress

A Federal Communications Commission panel trying to hash out model state laws guiding broadband infrastructure expansion remains mired in conflict, with local government representatives saying proposals would preempt their authority.

Local representatives on the Broadband Deployment Advisory Committee agree the code should be a framework for small cell wireless infrastructure deployment, which will be crucial as internet providers move to fifth-generation wireless technology. But, so far, there isn’t consensus on the panel about what that should look like.

All 30 members were able to unanimously agree on the Model Code for Municipalities, when they last met on July 26 and 27. But they didn’t agree on any substantive policies in the state version, which is expected to be revisited when the committee meets again.

“Most people who represent cities believe that this work belongs at the local level, not the state level,” Andy Huckaba, a BDAC member who is also a city councilman in Lenexa, Kansas, told Route Fifty. “There are now 20 states that have legislation that in various forms preempts local authority and control, and we fundamentally disagree with that.”

“You’re going to get pushback just on the concept of a state model code, even though we understand it’s optional and modular,” Huckaba added.

The purpose of the model code is to guide states, and thereby localities, in expanding broadband infrastructure through public-private partnerships and financing mechanisms leading to more affordable, accessible broadband.

Other committee members expressed disappointment the code couldn’t be finalized and complaints weren’t aired earlier.

Industry representatives voted down Article 3, recommending the creation of a centralized register of all available network support infrastructure available for broadband deployment, and Article 7, suggesting a designated state broadband infrastructure manager settle disputes with providers. Local representatives similarly blocked Article 10, proposing providers be able to enter into state franchise agreements.

The piecemeal rejections are a sign “all constituencies are being heard” in designing the state model code, said Elizabeth Bowles, president and board chair at internet service provider Aristotle, as well as chair of the BDAC.

“I think there’s a lot the FCC can and should do to encourage states to adopt this sort of as a safe harbor,” Bowles said. “Any state that is adopting this is making it clear they are committed to ensuring their cities have broadband; right now they are guidelines.”

Critics of the BDAC process have noted that government representatives are outnumbered by the telecom industry on the panel. Additionally, a smaller BDAC working group consisting mostly of providers and state regulators took part in the initial drafting process in 2017, which explains the increased local opposition to parts of the state model code at the July meeting, said Angelina Panettieri, principal associate for technology and communications at the National League of Cities.

In addition to proposing a slate of amendments to the code, including one indemnifying cities for complying with state law, NLC and the National Association of Telecommunications Officers and Advisors plan to release an alternative model that prioritizes city needs.

In contrast with the state code, the suggested language for municipalities was “by far the simplest thing that the BDAC had on its plate that week” because it had far more “blank spaces,” Panettieri said.

In other words, the model left items like permitting timeframes open-ended based on variables like city staff size.

The resignations of local government members on the BDAC raised the profile of municipal concerns and helped shape what that model code looks like, said Angela Stacy, marketing and communications vice president for broadband master planning consultant SmartWorks Partners.

Stacy, a BDAC member, opposes the state model code and doubts she will change her mind.

“It is a cost-based, preemptive model, and it always has been,” Stacy said. “The carriers are clearly lobbying hard to be subsidized in order to afford deployment.”

Stacy said preemption prevents cities from covering the cost of reviewing applications, sometimes hundreds or thousands of them, or establishing a digital inclusion fund to build out access to less affluent neighborhoods. For example, she noted that Nashville, Tennessee used to charge providers $715 per pole attachment per year, but telecom industry-backed small cell legislation at the state level has since capped that fee at $100, limited application fees and halted charges for accessing public rights of way.

Bowles countered that “there is a lot of sensitivity to local control” on the BDAC and in the state code they are developing.  

“There are elements of preemption in the state model code, but to call it a preemptive model I think is unfair,” Bowles said.

Providers have called cities “that don’t understand the necessity of streamlining their processes” barriers to 5G deployment, Bowles added, so a balance must be struck.

Generally, providers and cities agree permitting fees should be cost-based, but attachment and access fees are another story, said David Young, fiber infrastructure and right-of-way manager for Lincoln, Nebraska.

If there’s only one small cell in town “that cost is going to be pretty high,” said Young, who vice chairs the BDAC.

Discussions as to whether a cost-based or market-based methodology is preferable remain underway with the BDAC’s Rates & Fees Ad Hoc Committee, Bowles said, though an initial report points toward the former.

“A market-based cost with a cap is worse because it doesn’t take into account future costs,” Bowles said, plus the market for a pole in a small community might be zero.

The Rates & Fees presentation at the BDAC’s July meeting was cut short, but a footnote on page three of its report noted the ad hoc committee was unable to use pricing data collected since November in its analysis due to non-disclosures, Stacy said—adding to her list of concerns.

“I think you’ve always got to come at it with the mindset that this could become a mandate,” Stacy said.

Panettieri said NLC plans to oppose Article 12 of the state model code—which strongly suggests municipalities use private providers to build, own and operate their broadband networks—at the next BDAC meeting that Bowles is eyeing for October. The only exceptions in the provision are rural cities, which are urged to adopt a five-stage process for ruling out private options before exploring a fully public solution.

Smaller, rural municipalities that lack the background and resources to manage broadband deployment might benefit from the state model code, Huckaba said.

“This is not something we’re forcing states to do and localities to do,” Huckaba said. “Now, will there be people who try and use this in more preemptive manner? Maybe, I don’t know.”