Local Governments Slam FCC’s Proposed Moratoriums Ban; Some Support OTMR Policy

The FCC drew mixed responses from local government officials Friday to a draft order combining one-touch, make-ready rules with a ban on state and local moratoriums on new wireless and wireline facilities. A Nashville official lauded the agency for validating the Tennessee city’s overturned OTMR policy, but NATOA slammed the FCC’s proposed moratoriums ban. Local government attorneys warned it could lead to litigation.

The proposed order and declaratory ruling was released Thursday and set for a vote at commissioners’ Aug. 2 meeting (see 1807120053). It's “another example of the pre-emption by a thousand cuts approach that will eventually leave local governments with little ability to perform their basic duty of protecting the public safety and local interests,” said NATOA General Counsel Nancy Werner.

The proposed national one-touch requirement “validates what we did here in Nashville, and while I am sure there will be continued lawsuits from companies trying to hold back progress, we move one step closer to sensible pole policy in the US,” Nashville Metro Councilman Anthony Davis (nonpartisan) emailed Friday. AT&T last year sued and won a lawsuit against a Nashville OTMR ordinance that was sponsored by Davis (see 1711270051). He expects AT&T and others to fight the rules, “but the FCC would be making a very good and logical policy move here, helping move the Nation's broadband infrastructure forward dramatically.” That company didn’t comment.

NATOA slammed the draft order’s “incongruous pivot to preempting local review of deployments.” The “broad definition of a ‘de facto moratorium’ will allow communications providers to drag local governments before the FCC if their routine due diligence in vetting use of the rights of way ‘discourages’ the provider from filing an application,” Werner said. The draft “reflects the unfounded assertion that local government is standing in the way of deployment,” she said. “We stand ready.”

“Access to infrastructure must be swift, predictable, safe, and affordable so that consumers everywhere can reap" broadband's benefits, an FCC spokesman said. He said Chairman Ajit Pai's OTMR proposal, "coupled with his checks on needless regulatory barriers, will help accomplish this goal by eliminating major obstacles to the deployment of fiber, 5G, and other next-gen technologies.”

OTMR makes sense and is consistent with efficient policies like dig once, said Mayor Gary Resnick of Wilton Manors, Florida. But a blanket pre-emption of local moratoriums probably will lead to litigation, both local governments suing the FCC over the rule and industry suing localities for alleged violations, said Resnick, a telecom attorney. Any rule should have exemptions and allowances for reasonable moratoriums, he said. The FCC shouldn’t pre-empt local policies on hurricane or other emergency response or recovery, Resnick said. Moratoriums can give cities time to understand and implement state and federal laws, he added. Imposing such restrictions requires local ordinances and hearings, while existing laws ensure moratoriums are reasonable and not too long, he said. “Cities don't do moratoria just for the fun of it.”

Local governments could take the FCC to court, agreed Best Best local government lawyer Gerard Lederer. “My local government clients will work with the Commission over the next month to try and improve this item, but in the end, we may have to seek redress in the Courts as the Commission’s proposed actions are not only unwarranted, they are inconsistent with the Commission’s authority,” Lederer emailed. The draft “perpetuates an industry spun false narrative that local government is retarding deployment,” he said: The U.S. led the world on previous wireless generations with localities as partners.

The OTMR proposal is “fairly neutral to local governments,” emailed Ewell Brown’s David Brown. His client, CPS Energy, has an OTMR policy for the utility’s poles in San Antonio. “You may expect incumbent LECs and the cable companies to complain and for Google and new providers to celebrate,” he said. The moratoriums question is “somewhat trickier for municipalities,” Brown said. The FCC uses Section 253(a) to prohibit moratoriums even though (c) preserves local control in rights of way, he said. The lawyer forecast using Section 253 in this way without mentioning 332 -- maintaining state and local authority over wireless facility siting decisions -- “is likely to lead to further disputes related to the blended use of wireline telecommunications or cable facilities for wireless services.”

Google Fiber supports federal OTMR rules and applauds Pai's efforts "to remove obstacles that reduce choice and competition for broadband consumer," blogged John Burchett, director-public policy. It supported local OTMR policies challenged by incumbents in Nashville and Louisville.

NCTA met July 10 with the Wireline Bureau, warning against “extreme” OTMR proposals suggested by Verizon and Google Fiber, said a filing posted Friday in docket 17-84. Verizon says “the fundamental goal of these proposals is ‘[e]liminating existing attachers’ right to do their own work’ and transferring that right to new attachers, with no compensation and no contract,” NCTA wrote. “There is no way to reconcile this proposed policy of ‘eliminating existing attachers’ rights’ with the statutory regime governing pole attachments, which explicitly grants attaching parties the right to perform make-ready and the right to be held harmless from new attachments.” Even if the FCC had legal authority, “requiring this sort of forced access arrangement without also requiring the establishment of contractual or tariff arrangements between the parties would be a recipe for constant disputes,” said the group, which a spokesperson noted is reviewing the proposal.