The FCC’s draft declaratory ruling and third report and order that would establish new shot clocks for state and local governments to address applications to install small cell facilities and would treat violations of the shot clocks as a “presumptive prohibition” on the provision of services ignores the “minority report” filed by local government representatives on the regulatory barriers working group of the FCC’s Broadband Deployment Advisory Committee, one of those local government representatives has told the FCC.
The draft item, which is tentatively slated for a vote at the FCC’s Sept. 26 meeting, says that “while we do not adopt a ‘deemed granted’ remedy for violations of our new shot clocks, we clarify that failing to issue a decision up or down during this time period is not simply a ‘failure to act’ within the meaning of applicable law. Rather, missing the deadline also constitutes a presumptive prohibition. We would thus expect any locality that misses the deadline to issue any necessary permits or authorizations without further delay. We also anticipate that a provider would have a strong case for quickly obtaining an injunction from a court that compels the issuance of all permits in these types of cases” (TR Daily, Sept. 5).
In an ex parte letter filed today in WT 17-49 and 17-84, McAllen, Texas, City Attorney Kevin Pagan criticized the way the draft item incorporates some BDAC working group perspectives and omits others.
“I am filing this letter to share my disappointment with the way the work of the group was reported in the Federal Communications Commission’s draft Declaratory Ruling and Third Report and Order (‘Draft Order’) which is scheduled for a vote on September 26, 2018. Neither I, nor the other local government representatives on that working group, agreed with the Barriers Working Group’s conclusions, and independently developed a minority report to express our objections in detail. The majority of the working group minimized local government input into their report and voted to exclude our minority report from the documents delivered to the full BDAC. Nevertheless, we filed that minority report with the Commission, and it remains part of the record underlying the BDAC’s work. I believe that fairness dictates that in the repeated references to the Barriers Working Group report, there should be at least a single note that there exists a Local Government Minority Report,” Mr. Pagan said.
He added, “Adoption of a report by the BDAC does not seem to be required for inclusion in the Draft Order, either. It references the Rates and Fees working group’s draft report, which the BDAC has not adopted. And it cites that draft report for its page ‘listing “Local Government Perspectives,”’ yet makes no mention of local governments’ minority report.”
Mr. Pagan said, “To the extent the Commission cites BDAC materials, it should also acknowledge the dissenting views included in the BDAC’s record, particularly when referencing local government perspectives, which have been consistently minimized throughout the BDAC’s process and working group reports.” —Lynn Stanton, email@example.com