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Stacked Deck?

Local Officials Worry About BDAC Composition

Local authorities feel underrepresented on the FCC Broadband Deployment Advisory Committee and fear they won’t be able to support industry-dominated BDAC's recommendations, local officials said in interviews this week. “The deck is stacked and it’s not in local government’s favor,” said local government attorney Ken Fellman, a member of the FCC Intergovernmental Advisory Committee (IAC), which represents local, state and tribal interests but has no members on BDAC. Industry disagreed the BDAC is balanced against local voices.

FCC Chairman Ajit Pai chose 29 names from more than 380 applications to sit on the BDAC, with another 58 selected for its working groups, the agency said in April (see 1704060038). The only local official on the full BDAC is Sam Liccardo, mayor of San Jose, California. Local officials in BDAC working groups are New York City Chief Technology Officer Miguel Gamino; Larry Hanson, city manager of Valdosta, Georgia; Mayor Daniel Friesen of Buhler, Kansas; and Kevin Pagan, city attorney of McAllen, Texas. A local government representative has also been selected for the Federal Siting working group, the FCC said. The National League of Cities (NLC) in meetings last month with FCC staff, Pai and Commissioner Mignon Clyburn raised concerns about the number and diversity of local officials on the BDAC (see 1705220025). Later, at the Wireless Infrastructure Association meeting, Clyburn said the FCC should address the cities’ concerns (see 1705240007).

Cities fear BDAC may produce recommendations written for industry without a better balance of local and industry representatives, said Angelina Panettieri, NLC principal associate for technology and communications. NLC supports the local members appointed to BDAC, but Liccardo shouldn’t be the only local elected official on a “group that’s intended to come up with model code for state and local governments,” she said: Additional local officials were appointed to BDAC working groups, “but they’re not members of the full BDAC, and even then, they’re still vastly outnumbered by members of the industry.” In meetings at the FCC, Pai and Clyburn seemed receptive to NLC’s concerns, but they didn’t commit to anything and commissioners referred to adding more local members to working groups, Panettieri said. “I get the sense that they do feel they have done their job and their due diligence.”

NATOA was “taken aback” by the dearth of local representatives, Executive Director Steve Traylor said. There’s not much direct zoning experience among those selected, he added. “I’m not slamming anybody that’s been appointed.” Localities may question why they should adopt whatever model ordinances are produced, Traylor said. “It puts us in a hard position of endorsing anything that comes out of that group.”

'Not Balanced'

It’s not balanced by any stretch of the imagination,” Fellman said. “If one of the main goals is to draft model code provisions that would presumably be OK for every jurisdiction in the country, then it’s … hard to understand how it could have been structured this way and thought to be acceptable to the local government community.” Local officials should comprise at least half of the group and represent a spectrum of communities: big, small, rural and urban, he said. New York City’s Gamino, one local official on a BDAC working group, knows a lot about how local governments use technology, but represents “a really large city” that’s not representative of many communities, he said.

"That local government has an issue with the composition of the BDAC should be read by the FCC as a reflection of how serious local government takes the BDAC effort and how locals welcome efforts to find marketplace solutions and terms,” said Best Best local government attorney Gerard Lederer. “While the FCC has chosen some of local government’s best and strongest advocates for the BDAC, and for that we congratulate the commission, there are not enough of them. The most articulate and persuasive of advocates cannot overcome a 20-1 ratio.”

Local governments were concerned after the FCC decided last week to consolidate filing deadlines on a wireless NPRM and notice of inquiry with that for the wireline inquiry (see 1705260058), Lederer said. “That works just fine if you’re in industry and you’ve got separate units,” Lederer said. “It’s the same city attorney who is going to have file both comments and it’s the same federal policy person who is going to have to file both.” Industry groups asked for the consolidation and it was granted a day later, he noted. Local groups now are seeking more time on the wireline proceeding (see 1706010035).

"The Broadband Deployment Advisory Committee is a good idea," a NARUC spokeswoman emailed. "Composition of any advisory body will necessarily impact its recommendations. It seems likely the BDAC could provide better/more balanced recommendations if more infrastructure owners, as well as local and state government entities, are involved in the discussions."

Industry's Take

Industry officials disagreed with criticism.

BDAC and IAC aim "to develop long-term guidelines that will benefit communities of all sizes,” said Jonathan Adelstein, president of the Wireless Infrastructure Association. “WIA has always worked and will continue to work closely with the FCC and with national and regional organizations that represent local governments, both inside and outside of the BDAC, which is an excellent mechanism for building consensus.”

Scott Thompson, lawyer at Davis Wright who represents industry, doesn’t agree with the complaints. “If you look at the BDAC makeup, first of all, it’s not very big to begin with and it’s actually quite diverse,” he said. “It’s not at all industry dominated. ... There are really diverse interests that are represented. You’ve got tribes. You’ve got the LGBT community. You’ve got local government folks.”

The subject is likely to arise at next Thursday’s IAC meeting, local officials said. The IAC asked Pai to include one of its local, state and tribal members on BDAC, but got no response, said Fellman. “I’m hoping we’ll get a chance to talk to him about it next week.” IAC members aren’t happy that they’re not represented on the BDAC, said Panettieri. The IAC wrote a report last year on wireless siting issues, but it never came up at the first BDAC meeting, she said. An IAC member should be on BDAC, Traylor said. It’s not clear now whether they will be working in concert or at odds, he said.

Meanwhile, the NLC has its own working group working on a model local code for wireless infrastructure issues, Panettieri said. It will produce a "municipal action guide,” possibly this July, to help local officials understand and better negotiate with industry on wireless infrastructure siting, she said. The local group is gathering input from industry officials, she said. But the NLC official stressed, “It’s not intended to supplant what the BDAC is doing."