TR Daily BDAC Debates State, Muni Model Codes
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Wednesday, January 24, 2018

BDAC Debates State, Muni Model Codes

Members of the FCC’s Broadband Deployment Advisory Committee today debated draft model codes to be proposed for states and municipalities in dealing with broadband deployment with perhaps less heat and more avowed sympathy from industry than might have been expected in light of months of complaints from municipal interests about limited representation.

Much of the discussion focused on clarifying language in various provisions, although more substantive concerns regarding issues such as “deemed-granted” applications and cost-based fee structures were raised.

The BDAC plans to vote on the state and municipal model codes, which are still under development, at a yet-to-be-scheduled meeting in March or April.

This morning, the BDAC approved unchanged the minor revisions to a previously approved report from the working group on streamlining federal siting, which were presented yesterday (TR Daily, Jan. 23). Reports from the competitive access and removing state and local regulatory barriers working groups were adopted yesterday (TR Daily, Jan. 23).

During remarks to the committee this morning, FCC Commissioner Mignon L. Clyburn said she was still reviewing the draft reports on municipal and state model codes, but that so far she has noticed “an expressed preference for industry over municipalities in broadband deployment efforts.”

“As I have said many times before, one size does not fit all, and private industry infrastructure investments do not always flow to communities that are most in need. Therefore, I continue to ask for municipalities to be allowed to deploy a broadband network if that best suits the needs of the people they are elected and appointed to serve,” she added.

“Despite these concerns, I do welcome the inclusion of language in the committee’s Model Codes for States and Municipalities that supports eliminating digital divides between urban and rural areas and allocating resources to drive broadband adoption. Your report can provide guidance to those, who for far too long, have been on the wrong side of the digital and opportunities divide. My hope is that these recommendations can help these communities help themselves,” she continued.

“One of the reasons we are so keen on closing existing divides, is that connectivity allows for more robust access to public safety resources,” Commissioner Clyburn said, seguing to a discussion of the recent false emergency alert in Hawaii and the FCC’s planned vote next week on an order to enhance wireless emergency alerts.

“The draft Order proposes rules to improve the geo-targeting of these alerts. One of the challenges in that proceeding, is how the Commission should address the fact that most wireless carriers who provide these alerts, even nationwide carriers, have areas in their networks where they cannot transmit the alert, because of a weak mobile broadband signal,” she said. She said that this challenge “is why the work of this advisory committee is so important. By working to promote greater deployment of broadband, all of you improve the possibility that more consumers will receive alerts that can keep them and their loved ones safe during emergencies. I commend your efforts, and wish to again thank you, for your service.”

Commissioner Brendan Carr also spoke briefly to the BDAC, saying he looks at the issues it is addressing “through the lens of job creation and the economic opportunity it’s going to create.” He added, “The set of issues you all are working on will ensure that we are 5G-ready from a regulatory perspective. I don’t think we’re there yet.”

Kelly McGriff, general counsel for Southern Light and chairman of the state model code working group, emphasized that the code is designed to be “modular” so that “states can adopt all or part of it as it meets their needs.”

Among the issues debated by BDAC members were appropriate fees to be charged by local governments for access to rights of way and other facilities.

Under the draft model code, lease fees charged by government authorities should “be based solely on the Authority’s actual, direct and reasonable costs and shall be nondiscriminatory, competitively neutral and publicly disclosed and generally be based on the principles [set out in the code]. … No fees may result in a double recovery where existing fees already recover the Authority’s actual, direct and reasonable costs, nor be based on any other factors or conditions including the Communications Provider’s revenue or customer counts.”

Unlike the report presented yesterday by the competitive access group, the draft state code contemplates indemnification of old pole attachers by new attachers (TR Daily, Jan. 24).

The working group has not yet agreed on a definition of broadband. It is contemplating two options: “‘Broadband’ means wide bandwidth data transmission systems which can transport multiple signals and traffic types and which, in the context of Internet access, is used to mean any form of high-speed Internet access”; or “‘Broadband’ means any service used to provide Internet access that meets the following requirements: Speeds of at least 25 megabits downstream and 3 megabits upstream, increased as needed to meet changing demand and needs, and at a minimum to meet the definition of Advanced Communication Services as that term is defined by the Federal Communication Commission. Latency that does not exceed 100 milliseconds round trip [and] Minimum usage allowance of 150 gigabytes (GB) per month.”

The draft state model code would adopt a cost-based approach to permitting fees and would prohibit moratoria on the permitting and application process. Governments would not be allowed to require providers to make in-kind contributions, such as reserving space for the authority’s own fiber.

The draft state code contemplates a “deemed-granted” provision for permit applications if the government authority does not act on the request within set time limits.

San Jose (Calif.) Mayor Sam Liccardo noted that the code does not define “direct and actual costs” on which various fees are to be based.

Mr. McGriff said he would welcome advice from Mr. Liccardo on how to define the term.

The code contains provisions for establishing a state rural broadband deployment assistance fund as a replacement for intrastate universal service funds. The group intended that the funding be used for capital costs, but Chris Nurse of AT&T, Inc., objected that “if you cover capex, not opex, that tilts toward wired technologies.” He said that the FCC’s Connect America Fund “doesn’t prescribe whether you use it for capex or opex.” He added, “We don’t want to box ourselves out of what may be the optimal society outcome.”

Jaime Fink, chief product officer at Mimosa Networks, Inc., objected to the provision’s conflating of “rural” and “unserved” areas.

Article 12 of the code, which deals with rural municipal owned broadband networks, contains the preference for private networks that Commissioner Clyburn objected to.

“The preference of the State is that municipal Broadband networks be built, owned, and operated by private industry. But the State also recognizes that in Rural areas the economics of building such networks may be economically less viable, relative to other areas of the State, such that private industry interest in deploying Broadband Facilities may not exist in a timeframe or at a price to the consumer that the municipality finds reasonably acceptable,” it says.

However, members of the working group, including BDAC Chairman Elizabeth Bowles, who is president and chairman of Aristotle, suggested that the code is actually intended to provide a way to enable municipalities in the 21 states that currently prohibit municipal broadband networks to be able to operate their own networks if necessary.

“The ultimate intent is to give municipalities tools that they currently don’t have in 21 states,” Ms. Bowles said.

Andy Huckaba, a city council member in Lenexa, Kan., said, “The importance of leaving a muni broadband solution on the table is to close that gap” where economics don’t justify private investment. —Lynn Stanton, [email protected]

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