BDAC Rejects State Databases of Network Support Infrastructure
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Thursday, July 26, 2018

BDAC Rejects State Databases of Network Support Infrastructure

The FCC’s Broadband Deployment Advisory Committee today approved a model code for municipalities and voted to strike from the model code for states the provisions for state-maintained registers, or databases, of infrastructure that could support communications network facilities.

The BDAC was still working its way through the most recent version of the model state code when it adjourned for the day. It plans to resume work on the model state code tomorrow. The BDAC’s Harmonization Working Group developed the versions of the model codes for state and municipal governments presented today in the wake of the BDAC’s adoption of versions of the codes earlier this year that contained conflicts with each and with the previously approved output of other BDAC working groups (TR Daily, April 25).

In addition to completing its consideration of the Harmonization Working Group’s revisions to the model state code, the BDAC plans tomorrow to review a report from its Ad Hoc Committee on Rates and Fees, which is working to address the issue of what costs could be included in rates and fees for installing communications facilities.

The model code for municipalities covers the treatment of applications to install wireless and wireline facilities on poles and other structures and underground both in and outside the public rights-of-way, designating some applications as subject only to administrative review — as opposed to discretionary review, which gives the municipal authority more leeway to reject the application — and sets shot clocks for “deemed granted” treatment if a municipal authority does not issue its decision in time.

The BDAC voted 12-10, with six abstentions, to accept the decision of the Harmonization Working Group to strike a reference to “legally conforming” poles in the model municipal code that BDAC member Chris Nurse, assistant vice president-legislative and external affairs for AT&T, Inc., said would be “a substantial barrier” to deployment “because we would have to prove it’s legally conforming 800 times.” He said that a grandfathered pole that fell under the “legally conforming” category “can’t be that much of a problem, because the city was willing to live with it,” and the city could always require the pole to be replaced with one that met safety codes in the future.

During the review of the model state code revisions, there was discussion about whether the BDAC should remove provisions addressing one-touch make-ready (OMTR) policies for pole attachments, because the FCC plans to vote on an item dealing with that at its Aug. 2 meeting (see separate story).

BDAC Chair Elizabeth Bowles, who is president and chairman of the board of Aristotle, Inc., an Arkansas-based wireless Internet service provider, opposed eliminating the OMTR provisions, saying, “We may be a creature of the FCC but we were tasked with making a model state code. We were specifically not tasked with making rulemaking recommendations to FCC.”

In the end, the BDAC voted to add a footnote to the OMTR provisions recommending that states substitute the FCC’s OMTR policies, once they are adopted, if they differ from the BDAC’s.

The vote on approving the state register of network-supporting infrastructure assets failed to carry on an 11-14 vote.

During discussions about how to deal with rates and fees in the model state code, BDAC member Christopher Yoo, a law, communication, and computer & information science professor at the University of Pennsylvania Law School, said, “There is likely to be a recharter of the rents and fees committees. We are not going to vote on a concrete formula today or tomorrow.” He added, “What we’re looking for is placeholder language … to allow the process to continue.” —Lynn Stanton, lynn.stanton@wolterskluwer.com

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