Nicholas Miller and Joseph Van Eaton are partners in Best Best & Krieger’s Washington, D.C., office. They specialize in telecommunications law and wrote the flagship comments referenced in this article. Miller can be reached at nicholas.miller@bbklaw.com and Van Eaton can be reached at joseph.vaneaton@bbklaw.com.

The Federal Communications Commission (FCC) this past spring released a Notice of Inquiry entitled “Expanding the Reach and Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting.” The choice of title implies an FCC prejudgment of fault against local government rights-of-way and tower siting policies. In fact, it could be the first step in allowing the FCC to regulate local rights-of-way as agency officials review cell tower and road trenching requests by the telecommunications industry. The National League of Cities and seven other national associations representing local governments formed a coalition and filed “flagship” comments on July 18 urging the FCC to reject any effort to do so. Such a move, they said, would lead to the loss of billions of dollars in much needed cost-recovery fees for cities and counties in California and throughout the nation. It would give the cellular and telephone operators special treatment in zoning and in trenching the streets as well as a virtually free pass to use any and all taxpayer property at will and without restriction for their own purposes. California jurisdictions should be aware of this threat unfolding in Washington, D.C., and understand how they can best respond and assist their national advocates.

Responding to the Challenge

More than 100 cities and counties in California have been named by the industry in their comments to the FCC as employing processes that obstruct broadband deployment. The League of California Cities has made this list available to its members.

The first step is to check to see if your city or county is on that list. If so, consider filing “reply comments” by Sept. 30, 2011, with the FCC that:

• Explain the public purpose your rights-of-way policy serves in balancing competing community interests; and
• Correct any misimpressions created by the industry comments.

For example, in most cases, we believe the industry commenters have mischaracterized the facts and have failed to acknowledge that the industry applicant is the likely cause of delay and error.

Secondly, consider filing comments whether or not your city or county was named. Any federal rules that would impose time limits or restrict local government discretion to balance competing community interests will affect your budget, staffing and normal processes. In your comments, explain why you don’t need federal instruction on how to manage your streets and zoning processes.

Finally, ask your members of Congress to communicate to the FCC that local matters should be left to local officials. This is a time for all levels of government to work in partnership — not a time for federal authorities to expand federal regulation into areas like local infrastructure management where they have neither experience nor competence.

Where is the Evidence of Harm?

The comments filed by the national coalition offered both statistical and econometric analysis showing that local government management and oversight practices have no significant deterrent effect on industry broadband deployment. For example, the comments look critically at local policies in Colorado and Oregon, comparable states with quite different compensation and management approaches. They found that the deployment, prices and quality of service available always tend to be better in the locations with significant market demand, and local government oversight of deployment and fees had no discernable effect.

FCC Commissioner Robert McDowell remarked in a broadband progress report issued last May that “Capital investment in fixed and mobile broadband deployment continues to be a tremendous success story.” AT&T touts the competition in the wireless industry and admits that there are currently at least five competitive wireless providers in each of the top 20 U.S. metropolitan markets. Obviously, local government rights-of-way practices have not diminished this investment. Tellingly, no provider in the July 18 comments promised it would expand its network to underserved areas or reduce its prices if the FCC took action against local government zoning and management practices. In other words, it appears the issues the FCC is considering may be cost savers for the companies, but the benefits would not appear as better service, lower consumer prices or more availability.

According to the local government coalition, while local right-of-way practices do not deter broadband deployment or adoption, they do serve critical interests in local communities. Through these practices, local governments balance multiple competing demands for use of public lands and public rights-of-way and ensure that a scarce public resource, central to the everyday life of a community, can be protected, shared and developed.

What the FCC Should Do

The FCC should not ask local governments to spend scarce resources to respond to open-ended Notice of Inquiry questions as a means to promote broadband deployment; instead, the FCC should complete the work it promised Congress in the National Broadband Plan. In that document, the FCC proposed to re-create a committee of state, local, federal and tribal entities to discuss right-of-way management and compensation practices and recommend best practices. This group would mirror the structure of the FCC’s Local and State Government Advisory Committee, which existed from 1997-2003. Without explanation, however, the FCC appears to have abandoned this course, despite its past success, and taken rights-of-way advice from an industry group known as the Technical Advisory Committee on which there are no local government participants.

Conclusion

Right-of-way and cell antenna zoning practices — although critical to balancing competing interests in a community — are a minor factor in a broadband provider’s deployment calculus. Your national associations have worked hard to document that there is no evidence that these practices have deterred broadband deployment or adoption, or that they will do so in the future. If the FCC has genuinely not pre-judged these issues, it should have little trouble concluding that its time and resources are better spent elsewhere. Otherwise, local government is fully prepared to visit the matter with higher authorities in Congress, the courts and the people of America, the real owners of the affected property rights and public rights of way.

This article appears in the August 2011 issue of Western City
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