Local Officials Wary of FCC Overreach, Fear Additional Federal Moves

TAMPA -- Local telecom officials and their legal representatives are wary of future federal moves to encroach on their authority. They identified a wide gulf between their need for oversight of and compensation from providers and FCC actions this year and last, plus expected future agency deregulation. In interviews this week on the sidelines of their annual conference, NATOA board members and others had much criticism for the agency.

Federal regulation of local siting and related issues that stirred concern include a 2018 order on small cells. Other actions also slammed included an Aug. 1 local franchise authority order. Those rulings are being appealed in court. Further prompting worry is a follow-up LFA decision possible in about a year. That's causing fear the commission will further limit the amount of money municipalities can get for cable franchise accords.

Just as 5G has been perhaps the biggest technology topic at the ongoing conference, the fraught relationship between localities and the FCC has been perhaps the most-frequent policy conversation. In interviews and in informal conversations, these were two of the top issues, as well as on panels and in speeches. (See coverage including Notebooks in this section and 1909230031). The FCC declined to comment.

These federal moves "targeted local authority," said NATOA General Counsel Nancy Werner, "in a way that isn’t as conducive to the partnerships that everyone talks about as it could be. Local government and industry always say that they want to work together. These orders could have incentivized that. But instead, it feels like they have reduced local authority to the point that if a provider doesn’t want to work with a local authority, they don’t have to." Relations between local government and ISPs, carriers and other telecoms in their areas remain OK, attendees said.

City governments, like the FCC and other stakeholders, want to increase broadband adoption and to act quickly and at low cost on wireless and other applications (see 1909230012), many NATOA members said. When such providers' legal teams in Washington seek deregulation, however, that prompts the FCC to act on the requests and suggestions for changes to pending items with more responsiveness than NATOA and its allies believe they get. Boston likes "to have a good working relationship" with its cable operators and carriers, said outgoing NATOA President Mike Lynch, the city's broadband and cable director. "At a staff level, I think we’ve always gotten a great response" from the FCC, he said: "I struggle to understand the current commission" from an eighth-floor perspective.

Local Voices

"The FCC has not given voice to local governments anywhere near as much as they have to industry," said municipal lawyer Dan Cohen, a NATOA board member speaking only for himself. "If there was an equitable opportunity to convey our needs and interests to the FCC, as the industry has had, I think the FCC orders would be more evenhanded. And they’re not." The "perception is that the FCC is listening more to the industry than they are to local governments," he said. Other lawyers and local officials said similar.

With the LFA order, Lynch and Werner took issue with its signaling municipalities might need to redo terms of existing contracts, rather than that perhaps being voluntary and waiting for renewals. Lynch called that the "height of arrogance by the FCC towards local government." Do "I fear for local government under this FCC?" he asked generally. "Yes, I do."

With the order possibly taking effect Thursday, those contract changes are among worries about that clarification of what things count against the 5 percent cap on what cable operators can be required to pay annually from their local revenue. Looking ahead to the follow-up proceeding is a fear the companies could place high values on their carriage of public, educational and government programming channels. This could let the providers deduct that PEG value from the 5 percent cap, further lowering what communities could get, localities worry. "It's a huge financial impact to some local governments," Cohen said.

"How do we fund this now," Lynch asked of cities generally, now that things cable operators provided may not be free anymore. City budgets would have to fund them, he answered. "I'm losing revenue and I'm incurring additional costs now." It's "not the intent of the law as it was written," Lynch said. "It’s absolutely ludicrous.

Sen. Ed Markey's proud to be trying to stop the FCC under President Donald Trump from putting PEG channels "on the chopping block." PEG gives "viewers critical information about their communities," the Massachusetts Democrat said, accepting a NATOA award. He spoke Tuesday in a prepared video. "When the FCC took up a proposal" on PEG as part of its local franchise authority fees order, "I knew we had to fight that," said outgoing NATOA President Lynch. The goal's "to stop the commission from eviscerating" PEG funding, he said. "We know this fight is not over." Commissioners voted Aug. 1 along party lines clarifying and limiting what local franchise authorities can demand from cable providers (see 1908010011). Then, the agency said it would address the public access channel issue later.

Before the coming of 5G and the small-cells deploying that the standard will use, localities were signing distributed antenna system placement pacts with carriers, Cohen said. "We were able to negotiate agreements in an amicable way with wireless providers before" the FCC small-cells order, he said. "We have been able to either enact ordinances or negotiate agreements that have been generally acceptable to the providers on the ground." Municipalities find "negotiating agreements with cable operators and wireless providers has been more difficult after the FCC orders than before," he said. The commission's actions have "a one-size-fits-all motif," the attorney said. That's "hard to cram into a small borough the same way that you might [in] a large city."

5G, Pre-emption

Introducing Tampa Mayor Jane Castor, Wilton Manors, Florida, Commissioner Gary Resnick noted his state's "probably a leader in pre-emption, which is not great for those of us who work in local government." On PEG, "with the FCC order, this may all go away anyway," said Resnick, also a telecom lawyer for communities. "It may just be streams" online instead of over MVPDs, he added. The agency declined to comment. In her remarks to NATOA attendees mostly about Tampa's attractions, Castor said it's "so important in this day and age that we provide objective information" including on PEG. That's so people "can make up their mind" about the news, she said.

The new mayor of the host city of NATOA encouraged carriers to collocate equipment for 5G, and isn't a fan of a related state law that makes it harder for communities to act in this area, she said in a later interview. "We're trying" to encourage such telecom gear sharing space in the same facility, said the Democrat who took office earlier this year. "We're working on that," Castor said Tuesday of Tampa's 5G efforts more broadly, including with carriers.

On Florida's small-cell law that's facing legal challenges from other municipalities, "the state is usurping local rule," Castor told us. "I disagree with it" because communities have to make some of their own decisions on 5G, she said. The small-cell issue at the "U.S. Conference of Mayors was a very relevant topic," Castor said. It's hard to achieve "balance" in the 5G permitting process, she continued. Asked about Tampa's overall experience with telecom providers, she said "we have a good relationship." The mayors group says some members of the FCC, "Congress, and state legislatures have wrongly characterized this balancing act among competing interests for the public rights-of-way and maintenance of local authority as barriers to 5G deployment and, instead, have put the interests of national corporations ahead of the needs of communities and imposing a one-size-fits-all policy which preempts existing state and local policies."

The U.S. Conference of Mayors "works closely with NATOA and its members on these matters," emailed Kevin McCarty, the mayors' group staffer who works on telecom and related issues. His organization continues to oppose the 2018 small cell order and hopes that the 9th Circuit will reverse and remand it, he said.

NATOA Notebook

The so-called homework gap is a reason the poor need residential broadband, not just mobile service, said Jennifer Terry, program manager of New Orleans internet access and digital equity. She hopes NATOA pushes for ways for towns to extend broadband infrastructure and perhaps service to low-income areas that private ISPs don't serve widely. Seattle Digital Equity Manager David Keyes seconded that. "What’s really helping people to access the internet right now is quite frankly mobile technology," Terry said. "There are certain tasks that are hard to perform on a mobile phone," like editing a resume or job application -- which she tried to do and found takes much longer than on a device like a computer -- and completing homework, she said. "The homework gap is a problem. You’ve got these children sitting in the lobby or parking lot" of a McDonald's or a Starbucks, the official said. "We have to think about our students trying to complete multiple assignments. ... There are so many tasks that are difficult to complete on a mobile phone." So "getting people access in their homes is really the holy grail" of broadband, Terry said. A "very long-term strategy" is her city building a fiber institutional network to government buildings, she added: "It will obviously take years." It's "hard to entice the telecoms to offer service in low-income areas of" New Orleans and elsewhere, Terry said. All the most affluent neighborhoods there have net access, which drops to a percentage in the 30s for low-income areas, she said: "This is creating a huge disparity." NCTA, USTelecom and Louisiana's LCTA cable telecom association didn't comment.

Paying $40 monthly for home broadband may be too much for some, said Seattle's Keyes on a NATOA panel. "We still have to find ways to push and partner with the companies around that, offset the costs where we can." He gives "a lot of credit to the companies" like Comcast: It sees the Internet Essentials it began for those of limited financial means when the company was seeking to buy NBCUniversal "as a public value" and so kept and expanded the program even after the FCC's IE NBCU condition ended.

The Comcast/NBCU IE condition expired in 2014, company spokespeople noted. It has made 40-plus "enhancements and changes," including raising downstream speeds from 1.5 to 15 Mbps, and "numerous eligibility expansions," emailed a spokesperson. Uploads have been 2 Mbps since they were raised in 2017, he noted.

A telecom union recommended how localities can agree with carriers to deploy small-cell sites for 5G, at the NATOA conference. Fifth-generation has been a focus of much of the ongoing meeting. The Communications Workers of America sees small-cell wireless network deployment as "an opportunity to improve digital equity and promote good jobs," said a handout. "Although preemption efforts at the state and federal level have serious and substantial implications for what cities can do, recent FCC rulings and restrictive state legislation do not mean cities are powerless or must agree to whatever terms industry proposes." It's the first time CWA attended the local telecom officials' annual meeting, NATOA attendee and CWA Assistant Research Director Nell Geiser told us at the group's table advertising such materials. She said the organization began a website this summer, documenting Verizon's partnership with Sacramento, and added the small cell guidelines this week. CWA suggests municipalities "develop a template agreement for access to the right-of-way and use of publicly-owned assets." That ensures "a level playing field for all carriers and allows for inclusion of contract terms that protect the public interest," said the seven-page brochure on display, and an online summary. "Ensure an open public input process." On the newer website, it also posted the full document. The Competitive Carriers Association declined to comment; CTIA didn't comment Tuesday.

Since 5G is nascent and won't be ubiquitous for a while, smart cities deploying advanced technology can't rely solely on that standard for tech advancement, ISP and other executives told local telecom officials. "5G is going to be great, a lot of your cities will start seeing pilots soon" from carriers, said Patti Zullo, Charter Communications' Spectrum Enterprise senior director-smart cities. Until it's the protocol of choice, "5G will not have that much effect in your city," she added here Tuesday. With IoT and cities, "we’re not at a point of mass adoption" yet, said Comcast Vice President-IP Services Patti Loyack. Municipalities don't seek to become smart cities to get more data, Zullo noted. "They have plenty of data," she said. "They need to look at the data and have some 'aha' moments." Smart tech can help localities "tackle major problems," but such deployments haven't advanced fully, said US Ignite Executive Director Bill Wallace. Places deploying it could do real-time diagnostics and have open data, he said. "None of this is easy, and none of this will happen overnight." Moving to such a model is "hard work and it requires leadership to really take a leap of faith," Wallace said. "A lot of them take a while to pay back," he said of such investments, and "for citizens to see the benefit."