A coalition of national associations representing most of the nation’s cities and counties urged the Federal Communications Commission to support local control of rights-of-way so private companies cannot bypass local zoning rules and fees when expanding broadband and cellular service.
The federal agency is considering whether to regulate local governments as it reviews cell tower and road trenching requests by the telecommunications industry.
The issue pits local governmental authority against the interests of the nation’s wireless industry. By examining the responses to the Notice of Inquiry issued by the FCC in April, the opinions of both interests can be identified.
One position is that of The National League of Cities and seven other associations. The response was written by Best Best & Krieger attorneys in Washington, D.C., and filed last week with the FCC. Their response states, in part, “For local governments across the country, increasing broadband deployment and adoption is a priority… Yet broadband cannot be local governments’ only goal. Local governments also have a duty to advance their citizens’ well-being, and to ensure that local property-central to a community’s character, welfare, and daily life-is sensibly protected, shared, and developed.” In other words, local governments have the right and responsibility to view a picture larger than just when and where Over-The-Air equipment is built.
The opposing view, that of the Wireless Communications Association International, advocates for wide-spread federal government intervention into local land use and planning authority, to “undertake a strong campaign to educate (local government) agencies… so that broadband deployment can be accelerated… achieving the goal of rapid deployment of nationwide broadband.”
Such a move, the local government organizations say, would lead to the loss of billions of dollars in much needed cost-recovery fees for cities and counties. The organizations said zoning and right-of-way management are purely local matters and the federal government should stay out.
“This proceeding at the FCC is very threatening to core local government interests,” said Nicholas Miller, a BB&K attorney who co-authored the comments. “The cellular and telephone operators want special treatment in zoning and in trenching the streets. They seek a free pass to use any and all taxpayer property at will and without restriction for their own purposes.”
Further, the BB&K attorneys who filed the comments on behalf of the associations challenged the agency’s legal authority to do that, noting that such regulations would run afoul of the federal Communications Act and raise serious constitutional concerns.
In their comments, the telecommunication companies claimed that local government controls over cell tower placement and construction in rights-of-way were hindering the deployment of new communications networks. In requesting reduced permit and lease fees for municipal and special agency property, they named more than 100 cities and counties in California that they believe are slowing down the progress.
“Many California communities may be unaware that they are being targeted,” Miller said. “If the FCC allows this effort to move forward, commuters, homeowners, other utilities and taxpayers generally would be subsidizing private systems that inconvenience all other rights-of-way users and property owners. Local rules are needed to control what would be careless and aimless expansion, as well as to fairly allocate the public space involved.”
Joseph Van Eaton, the other BB&K co-author of the comments, pointed out that the notice of inquiry proceeding is just the first step.
“This is the start of a significant push by the powerful telecommunications industry to get their way, and local governments must get involved if they want to protect the interests of their communities,” Van Eaton said, noting the Aug. 30 deadline to submit comments to the FCC.
The response to the Notice of Inquiry addresses five specific topics relevant to the debate:
- Local government agencies’ right-of-way policies have not deterred the implementation of deployment of broadband in communities.,
- Local Right-of-Way practices advance important local interests;
- Local experiences demonstrate that planning and permitting practices work well and are flexible to new issues;
- The FCC should not, and can not, regulate local Right-of-Way practices, and should instead focus on developing helpful, voluntary practices; and
- FCC Regulation of local Right-of-Way practices would be in violation of the Communications Act and Constitution.
Besides the National League of Cities, the comments filed by BB&K were jointly submitted by the United States Conference of Mayors, the National Association of Counties, the International City Managers Association, the American Public Works Association, the International Municipal Lawyers Association, the Government Finance Officers Association and the National Association of Telecommunications Officers and Advisors.