BDAC Defers Model State Code Votes After Deleting Franchises
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Friday, July 27, 2018

BDAC Defers Model State Code Votes After Deleting Franchises

The FCC’s Broadband Deployment Advisory Committee today decided to table consideration of some of the sections of its model state code until a version reflecting the extensive changes made yesterday afternoon and this morning — including the deletion of two entire sections, or “articles” — can be produced.

At least two BDAC members suggested that the entire model state code be abandoned in light of the continuing disagreement and extensive changes adopted on what was supposed to be a “harmonized” version of the code produced by the Harmonization Working Group that tried to iron out any inconsistencies among the model state and municipal codes — both approved by the BDAC in April subject to harmonization — and previously approved output of other BDAC working groups (TR Daily, April 25).

When the committee voted today to table work on the remaining articles of the state code, BDAC Chair Elizabeth Bowles, who is president and chairman of the board of Aristotle, Inc., an Arkansas-based wireless Internet service provider, said she would like the committee to meet to finish work on the code in August or September at the latest, possibly through a web conference rather than in person at the FCC’s headquarters.

The BDAC had voted yesterday, during the first day of the two-day meeting, to eliminate article 3, which contained provisions for state-maintained registers, or databases, of infrastructure assets suitable for supporting, containing, or attaching communications network facilities (TR Daily, July 26).

Today, the BDAC removed sections of other articles that referred to the network support infrastructure register (NSIR) in the deleted article 3, as well as the entirety of article 10, which dealt with state-wide franchises, and the entirety of article 13, which dealt with a state-level broadband infrastructure manager, whose duties would have included overseeing the NSIR.

BDAC Vice Chair David Young, who is the manager–fiber infrastructure and rights of way for the city of Lincoln, Neb., said that “adding an additional layer of regulatory burden is not encouraging bb deployment.”

Kelly McGriff, general counsel for Southern Light and chairman of the state model code working group, said, “I think that’s a terrible idea.” He said that in the metropolitan area of Birmingham, Ala., alone, his company had to negotiate 48 separate franchise agreements, which took four years. If another company wants to enter the market, it would be “four years behind us,” which, he noted, is a good thing for his company, but not for encouraging broadband deployment.

“I get that you want to retain that control and that income stream to municipalities,” he said to Mr. Young.

However, Mr. Young said that “if you are a start-up or a small company and you have to go to the state level to get a franchise [to deploy in one community], that is a barrier.” He added, “If a small community decides they don’t want to have a franchise, they should be able to do that.”

David Don, vice president–regulatory policy at Comcast Corp., said that “as drafted,” companies are not required to obtain a state-wide franchise, and could instead choose to negotiate with individual cities or towns.

Larry Hanson, city manager for Valdosta, Ga., said, “I recall saying at the first BDAC meeting that having a state franchise undermines the integrity of having a municipal model code.” He noted that the committee adopted the model municipal mode unanimously yesterday (TR Daily, July 26).

The vote to strike the provisions on the state franchise passed 12 to 10, with three abstentions.

The BDAC amended article 11, which offers language for states to establish rural broadband deployment assistance funds, to indicate that contributions to the fund should be assessed on advertising-based and subscription-based services that depend on broadband service, such as Netflix or YouTube, as well as on the broadband providers themselves.

The BDAC did not consider the articles in the order in which they appeared in the code, in part because some presenters needed to leave early and in part because of requests related to dependency of some articles on provisions in later articles.

When a motion was made late this morning to strike in its entirety article 7, which dealt with making sure new and modified infrastructure that could support broadband network facilities is constructed or modified so that it is “ready” to do so, and which depended in large part on the previously stricken sections on the NSIR and the state broadband manager, Angela Stacy, VP–marketing and communications at the Connected Nation Exchange, said, “I think the mistake we made in April was in voting this out to harmonization. The code wasn’t in the shape it needed to be in to head to harmonization. … This isn’t a knock to the people who put in time in good faith” to work on harmonization, she said, adding, “I’m almost inclined to strike this code entirely.”

Jaime Fink, chief product officer of Mimosa Networks, Inc., disagreed, saying that “there are a lot of areas where it’s important to have a state code” because the issues are not addressed by municipalities.

Mr. Young, however, said, “I echo Angela’s comment. … This has become Swiss cheese” because of all the content that was struck. “Now that the committee has been extended, maybe we take it back” for further consideration. “It’s hard to follow the redline” in order to make a decision on the document as it is changed. “Maybe we refer it back to the working group,” he suggested.

Chair Bowles said, “We may not finish, but I’m not really open to going backward” by referring it back to the working group.

Karen Charles Peterson, a commissioner on the Massachusetts Department of Telecommunications and Cable, said, “I was vice chair of the model state group. I do not object to our taking it back. But the question is in what shape we would take it back” — that is, in the version presented by the Harmonization Working Group or in the version created by the work of the BDAC yesterday and today.

Chair Bowles said, “We just spent a half a day yesterday and half a day today – that’s been done. It’s not your opportunity to reopen stuff” that the BDAC has already voted on.

She added, “My sense is that the longer this drags out the less relevant it becomes. … I do think that we don’t have until February. We have until next month.” She said that “the FCC — the Chairman’s office — has been waiting for this” in order to move ahead on recommendations of the BDAC.

Douglas Dimitroff, a partner in the law firm of Phillips Lytle LLP, who represents the New York State Wireless Association on the BDAC and who was chair of the model code for municipalities working group, said, “These are hard issues. … I agree we don’t have to go back to the beginning.”

In the end, the BDAC voted unanimously to table consideration of articles 7, 8, 9, 11, and 12, which address broadband readiness of new and modified infrastructure, broadband readiness of buildings and network access points, deployment of communications network facilities, rural broadband deployment assistance funds, and rural municipal-owned networks, respectively.

In a presentation of the work of the ad hoc committee on rates and fees, committee Chairman Andy Huckaba, a city council member in Lenexa, Kan., said that the group has worked on establishing principles that should guide the establishment of rates and fees, including one-time fees, rental fees, and access fees. —Lynn Stanton, lynn.stanton@wolterskluwer.com

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