Cities' Input Shut Out Of Infrastructure Order, FCC Told

Local government stakeholders were silenced during the process of drafting the Federal Communications Commission's upcoming order that sets timelines and fee schedules for new small cells, and localities' views have been consistently misrepresented to the commission, according to a member of the Broadband Deployment Advisory Committee. City attorney Kevin Pagan, who represents McAllen, Texas, told the FCC in a letter posted Monday that the draft order, which is up for a vote at the FCC's Sept. 26 meeting, doesn't reflect dissenting opinions within one of the BDAC's working groups and casts local government leaders as if they concurred with other industry participants on matters of FCC authority. "Neither I, nor the other local government representatives on that working group, agreed with the Barriers Working Group's conclusions, and independently developed a minority report to express our objections in detail," Pagan's filing said. "The majority of the working group minimized local government input into their report and voted to exclude our minority report from the documents delivered to the full BDAC." The so-called Removing State and Local Regulatory Barriers Working Group is part of the broader BDAC tasked with identifying hurdles to expanded broadband service on the local level and ways to overcome them. According to the 18-page minority report, representatives of municipalities didn't agree that the FCC has the purview to demand local access for wireless carriers or to exert such broad authority over local governments. According to the January report, lumping overruled stakeholders in with the agreed-upon majority views from the working group has become somewhat common. "The proposed 'consensus reports' more often than not reflect only industry's interests while turning a blind eye to the position of municipalities," the report said. This problem has carried over to commission-level draft items in which the FCC draws on the views of the BDAC to back up its proposals, according to Pagan. "To the extent the commission cites BDAC materials, it should also acknowledge the dissenting views included in the BDAC's record, particularly when referencing local government perspectives, which have been consistently minimized throughout the BDAC's process and working group reports," Pagan wrote. The draft order at issue would require municipalities to review and make decisions on new small cells and related infrastructure within two to three months. It would also limit the fees localities may charge to cover only their administrative costs, rein in conflicting local rules such as aesthetic reviews and reiterate that local rules preventing wireless expansion are barred. Separately, local governments from across the country submitted largely similar letters posted Monday to oppose the order, saying it chisels away too much local authority. They asserted that the order sets a low threshold for the shot clock mechanism, saying the "category is too extreme" and that attachments to nearly any already standing structure can be eligible for the expedited processing regardless of whether the structure is well-designed to handle the attachment. The cities also said that the fee guidelines provided in the draft order — about $270 per small cell — are unrealistic, especially as the FCC has established a pattern of stepping back from regulating rates. On the other hand, the FCC majority has publicized the order as a way to expedite the availability of 5G service — which is expected to rely on a dense network of small cells — and ultimately lower the cost of services. However, the city of Casper, Wyoming, attempted to poke holes in that theory. "Local pole attachment rates have little impact on what the rates will be for consumers," the city said in a letter.

This article originally ran on law360.com.