TR Daily BDAC Approves Report from Investment in Low-Income Areas WG
Thursday, December 17, 2020

BDAC Approves Report from Investment in Low-Income Areas WG

The FCC’s Broadband Deployment Advisory Committee today approved a revised report with recommendations for the FCC prepared by the BDAC’s increasing broadband investment in low-income communities working group, after debating issues such as the phrasing of a recommendation for a "use it or share it" policy on spectrum.

The report was the last of the BDAC’s working group (WG) reports to be approved by the advisory group, ticking off the final task assigned by the FCC, although the group’s Federal Advisory Committee Act charter does not expire until March, as the group’s designated federal officer, Justin Faulb, and BDAC Chair Elizabeth Bowles noted at the end of today’s meeting, which was conducted via video conference call and livestreamed on the FCC’s website. Currently, no further meetings of the BDAC are planned.

Ms. Bowles said, "Certainly our charter has been completed, but we are still on deck until March 2021, so we may be asked to answer the call again, and I know we all will."

The increasing broadband investment in low-income communities WG had presented its report at the last BDAC meeting,but it undertook to revise the report in light of comments received from the full BDAC at that meeting, notably including concerns expressed by municipal government stakeholders that language in the draft could be read as supporting preemption of local governments (TR Daily, Oct. 29).

WG Chair Tom Ferree, who is president chief executive officer, and chairman of Connected Nation, said the group had to complete the revisions in just 14 days to meet the BDAC’s requirement for circulating the report to members 30 days ahead of the BDAC meeting.

Along with copyediting changes and the addition of a table of contents, the WG struck a "a special callout on the tax strategies associated with incentivizing deployment," deciding instead to refer to tax strategies in other recommendations, Mr. Ferree explained. The group also added a case study from Chicago.

The group struck some examples in areas such as minimizing regulatory barriers, because they "did not want to get into the business of relitigating some of the things from previous BDACs, [such as] the state model code," he said.

In the portion of the report dealing with adoption, the group added citations and improved data but did not make many substantive changes, Mr. Ferree said.

BDAC member Brent Skorup, a senior research fellow at the Technology Policy Program at George Mason University’s Mercatus Center, raised concerns that language in the report regarding use it or share it spectrum policies was focused solely on wireless carriers, although other entities also hold spectrum.

"This would have an effect on spectrum auctions certainly if you have this possibility of your spectrum being yanked away. And the thing about mobile carriers is, unlike many other users, they’ve paid for [their use of the spectrum]," he said. He also pointed to a perverse incentive of such policies to start using the spectrum for unneeded services or in areas that don’t need additional service, rather than using it areas that need service.

Massachusetts Department of Telecommunications and Cable Commissioner Karen Charles Peterson, who represents the National Association of Regulatory Utility Commissioners on the BDAC, asked if inserting a time limit on the length of time unused spectrum could be held would address Mr. Skorup’s concerns.

He said a time limit would help, but he again raised concerns about singling out wireless carriers and ignoring other spectrum users.

Chris Nurse, assistant vice president-state legislative and regulatory affairs at AT&T, Inc., said he agreed with changing wireless carrier to spectrum holder in the passage on use it or share it. He also said that buildout provisions on licenses "should be an upfront deal."

Ms. Bowles said that her understanding of use it or share it proposals was that the spectrum holder would be compensated for the use of the spectrum.

Mr. Nurse raised the concern that the phrase share it raises the possibility that the spectrum "gets to be Wi-Fi spectrum or something like that," and is a "windfall" for the new users, rather than being return to the FCC to be reauctioned.

In addition to changing wireless carriers to spectrum holders during the word smithing, the group also changed the recommendation from asking the FCC to adopt use it or share it policies to asking it to investigate such policies.

Nancy Werner, general counsel for the National Association of Telecommunications Officers and Advisors, raised the concern that references in the provision suggesting that all spectrum should be used to serve "customers" overlooks spectrum allocated for other purposes.

Ms. Bowles suggested that first responders, school districts, and others that benefit from spectrum could be appropriately referred to as customers.

Ms. Werner also objected to a footnote in the report citing guidelines NATOA developed with the National League of Cities regarding permitting during the COVID-19 pandemic in a way that suggested the guidelines could be used beyond the pandemic in a way not intended by the authors.

Ms. Werner also expressed concern about references to unreasonable fees and lease payments, without defining unreasonable.

Mr. Nurse argued that "reasonableness is a standard term used for many things."

Ms. Bowles said she didn’t think it was the BDAC’s job to set specific dollar amounts as reasonable or unreasonable.

Ms. Werner also asked which fees are encompassed by the term fees in the provision.

"All of it," Ms. Bowles said.

Ms. Werner said, "I guess I’m not supporting a statement that says any kind of fee out there discourages deployment or investment."

Mr. Nurse argued that that wasn’t a "fair representation" of what was in the report.

"If you were to delete it would allow … a $25,000 fee or a million fee per small cell and we would be taking a position even a $100 million fee is not a barrier," he said.

"Chris, that’s not the position we’re taking," Ms. Werner responded.

Mr. Nurse said that deleting the language would be "worse."

Brian O’Hara, senior director–regulatory issues at the National Rural Electric Cooperative Association, said that if the report is to list barriers, his members would have a different list. He said he didn’t "think that removing [the reference to fees] says, ‘yeah, sure, you can charge $1 million for this fee and that’s OK.’"

Larry Hanson, executive director of the Georgia Municipal Association, said, "I agree with what Brian said. We’re cherry picking and taking one perceived obstacle and we could sit here all day and come up with obstacles to deployment. I could say one impediment to furthering broadband is large corporations that spend hundreds of millions on naming stadiums and arenas, or $20 million CEO salaries are an impediment to the deployment of broadband. It seems we’re picking one out of many but to me if we want to try and fix it and leave it in there, it’s written in the negative sense and could be written in the positive sense and should say that reasonable fees encourage broadband deployment and investment. Why does it have to be written in a negative way as accusatory?"

Ken Simon, senior VP and general counsel at Crown Castle, said that the provision of unreasonable fees was "one of the things that convince me to be supportive of this report."

"I think it is entirely appropriate for it to be here and is consistent with what federal law already provides and is consistent with what the findings of the prior BDAC were," he said.

Scott Rudd, director–broadband opportunities in the office of Indian Lt. Governor Suzanne Crouch, suggested eliminating the separate bullet point about unreasonable fees and adding it to previous list that mentioned local statutes and ordinances that are a barrier to deployment.

Eve Lewis, assistant city attorney for Coconut Creek, Fla., said it seems inappropriate to focus on one specific example like fees. She supported Mr. Hanson’s proposal of "flipping it to the positive and saying let’s focus on reasonable fees."

The BDAC agreed to move the reference to fees to the list with ordinances and statutes, as Mr. Rudd suggested.

The BDAC returned to discussing the change that Ms. Werner had suggested with respect to the NLC-NATOA guidelines on permitting.

Mr. Hanson said, "I think we need the permission of the authors of the document which we don’t have to use it in a way they did not intend."

Mr. Nurse suggested adding language pointing out generally that lessons learned during the pandemic may have applicability afterward, and the change was made. In addition, the group agreed to the removal of the footnote that Ms. Werner objected to.

Ms. Werner raised concern about the report’s call for lease terms to be uniform and sufficient, asking which lease terms it refers to, and how far the uniformity should extend. "Do we mean nationwide, across the state, across industry?" she asked.

Ms. Bowles suggested the language be read in the context of the previous BDAC’s model code for municipalities.

Mr. O’Hara noted that some of his members offer lower prices for attachments in unserved areas to encourage deployment, which would not be "uniform."

David Young, manager–fiber infrastructure and right of way for Lincoln, Neb., proposed non-discriminatory as a substitute for uniform, which members accepted. —Lynn Stanton, [email protected]

MainStory: FederalNews FCC BroadbandDeployment Covid19

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