Localities Object to Being Treated as Barriers to Deployment

Local governments are pushing back in FCC filings against the idea that they create obstacles to the deployment of broadband and small cell infrastructure and that their decisions and agreements with providers should be overridden by the federal agency.

In an ex parte filing in WT docket 17-79 (wireless broadband deployment) and GN docket 17-83 (Broadband Deployment Advisory Committee), the city of San Jose, Calif., reported on the success of “collaborative efforts” with AT&T, Inc., Verizon Communications, Inc., and Mobilitie LLC for the installation of small cells on approximately 4,000 city-owned light poles (TR Daily, June 15).

“Of course, there is no ‘one size fits all’ solution, but the approach of joint collaboration to agree upon mutual interest in accelerating broadband is a model that can [be] replicated nationwide.  San José has shown that investment in capacity of local government and collaboration is much more effective than legislation and litigation,” San Jose Mayor Sam Liccardo, who resigned from the BDAC early this year citing the “overwhelming” influence of industry on the BDAC that was leading to a “predetermined” outcome (TR Daily, Jan. 25), said in a letter to FCC Commissioner Brendan Carr, who has been tasked by FCC Chairman Ajit Pai with being the point person in the agency’s wireless infrastructure streamlining efforts.

“The City is aware of course, based on your public comments, that the Commission expects to be considering the adoption of further measures in WT Docket No. 17-79 to address matters such as right-of-way fees, application processing timelines and moratoria as they relate to small cell deployment.  It is not the City’s purpose to comment on those initiatives here,” Mayor Liccardo said.

“However, in taking such actions or adopting any rules, the Commission must avoid imposing any explicit or implicit preemptive requirements that might undermine or invalidate freely-negotiated, arms-length agreements (or any terms thereof) such as those successfully developed with AT&T, Verizon and Mobilitie for the City. The City respectfully submits that the Commission should be explicit that it is not disturbing such agreements,” he added.

“Any action to the contrary would be wholly counterproductive to the Commission’s goal of ‘getting more broadband to more Americans’ and would discourage collaborative efforts that could lead to more quickly reaching that objective in many locales.  We respectfully hope that you would agree,” Mayor Liccardo said in the letter, which was dated yesterday.

In an ex parte letter to the FCC filed in WT docket 17-79, WC docket 17-84 (wireline broadband deployment), and WT docket 16-421 (small cell deployment), the city of Rockville, Md., said that it is “opposed to the Commission’s consideration of significant broadband deployment preemptions.”

Rockville Mayor Bridget Donnell Newton said in the letter dated today that the city “objects to any rules that usurp local authority to manage the public rights-of-way, including rules that would preempt localized decisions as to the location of small cell infrastructure and aesthetic concerns.”  She said that the city has approved 299 permits for work in its rights-of-way so far this year.

“Industry proposals for fee caps and ‘deemed granted’ remedies and the mandated access to rights-of-way, municipal poles, and other public property by small cell providers are unreasonable,” Mayor Newton said.  She cited the “complex and site-specific factors” that cities must weigh, including aesthetics; space constraints; damage to other utilities and public infrastructure; and compliance with the Americans with Disabilities Act.  Fee caps could prevent municipalities from recovering their costs, she added.

“Additionally, by placing ‘deemed granted’ remedies and fee caps on small cell permits, such permit requests would receive priority over the review of other essential services, such as water, sewer, electric and gas.  Moreover, if the fee caps do not adequately cover permit processing costs, they will be unfairly borne by municipal taxpayers.  As for-profit entities, wireless providers should be responsible for these costs,” Mayor Newton said.

In a Tuesday ex parte letter filed in WT docket 17-79, WC docket 17-84, and GN docket 17-83, the city of Portland, Ore., pushed back against ex parte filings by AT&T and Verizon earlier this month regarding the city’s small cell pilot program for attachments to investor-owned utility poles.

“Portland writes to demonstrate that the claims made in their August filing does not reflect statements made for the record by both companies. … Both August 10th filings completely ignore Portland’s small cell pilot program, which was active for almost 3.5 years and set annual ROW fees at $1,200 per year per node,” Jennifer Li, program manager for Portland’s Office for Community Technology, said.  She noted that city approved 55 of Verizon’s 60 small cell applications under the program, as well as 11 small cell installations by Crown Castle on behalf of Verizon, and that AT&T “never submitted an application.”

She quoted positive statements about the program by Verizon and AT&T officials at Portland City Council meetings in 2014.  “Portland is at a loss as to why Verizon and AT&T’s views have changed so drastically since 2014.  Portland’s pilot was never intended to be a permanent program.  It ended in the fall of 2017 and we are now evaluating the data and drafting informed changes to our wireless ROW code, including revised ROW fees.  Portland is also working rapidly, and with wireless carrier input, to develop signal light poles and ornamental pole specifications.” —Lynn Stanton, lynn.stanton@wolterskluwer.com

Courtesy TRDaily