Don't Count on a Biden FCC Reversing Cable LFA Order

A big Democratic win in November could lead to a reversal on last year’s cable local franchise authority order, but don’t assume the next FCC or Congress will act, local government officials said Wednesday at a NATOA virtual conference. Localities challenging the order in the 6th U.S. Circuit Court of Appeals say a decision is possible next year (see 2009010053). The pandemic could affect the issue’s politics, said panelists and other attendees.

The FCC passed the cable LFA order 3-2, with Democratic commissioners against. If Democratic nominee Joe Biden beats President Donald Trump, the next FCC could vacate the order, but it's not certain, said Bradley Law’s Mike Bradley. The Obama FCC waited seven years to respond to a reconsideration petition on a previous cable LFA order by the George W. Bush administration, then “basically upheld” it, Bradley said.

A Biden FCC would likely pose “less threat” to local governments than today’s commission, but even if localities get more respect, they shouldn’t expect to get everything they want, cautioned local telecom attorney Ken Fellman. “Even a Democratic FCC may have what it considers higher priorities -- for example, net neutrality,” said Fairfax County, Virginia, Communications Policy and Regulation Division Director Rick Ellrod, responding to our question.

Capitol Hill Democrats have bills to reverse the cable LFA order, but that doesn’t mean they will act quickly, localities lawyer Gary Resnick of GrayRobinson said in chat. “There’s a lot of legislation involving communications issues that has not moved because of lack of bipartisan support. Unknown what would be a priority under a new Congress.”

The need to broadcast local COVID-19 information is showing the importance of public, educational and government channels, said panelists and attendees. PEG channels, institutional networks and cable services to government facilities “are particularly important now in terms of public safety, communications with residents and businesses as to rules applying to COVID and communications,” said Resnick. In many cities, PEG channels are the only source for local information, said Bradley. But it “cuts both ways,” since the industry “will argue that any reduction in their costs will result in expanded deployment,” wrote Ellrod. PEG’s pandemic value “has unfortunately fallen on deaf ears with the current FCC majority,” added Fellman.

Localities should condition franchise agreements so a change in law would trigger negotiations between parties to amend the LFA, advised Fellman. The Colorado Communications and Utility Alliance is developing model language, he said.

One year after the cable LFA order, cable companies haven’t asked Fairfax County to pay for public access channels or seek other benefits they received, Ellrod said. Bradley “heard at least the initial position point that because of the [cable LFA] order, now they don’t have to provide certain things” like PEG transport, he said, “but we haven’t progressed far enough in those discussions yet to see how they’ll ultimately pan out.”

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Municipalities are swiftly processing permit applications amid the pandemic, said local officials during Q&A. Seattle has “been able to keep permitting 'business as usual' with remote work,” said Office of Cable Communications Cable Franchise Analyst Alice Lawson. “Industry has been cooperative,” while the city has been flexible when companies asked to reprioritize existing permits, she said. The pandemic pushed Minneapolis and St. Paul suburbs “to improve their electronic permitting process and they have not slowed down,” said Northern Dakota County Cable Communications Commission Executive Director Jodie Miller. “Planning commissions and inspections departments worked right through as essential workers.” Providers “have not been nice to us,” wrote Cyril Vidergar, assistant city attorney for Fort Collins, Colorado, in the chat. “Several have gone to our City Manager and Council seeking (even more) expedited permit/app approval.” Scottsdale, Arizona, had many AT&T and Verizon small-cells applications last year, “but very few this year,” said senior planner Keith Niederer. The city was “told their budgets pushed new applications to 2021,” he said. There has been no decision on appealing last month's 9th U.S. Circuit Court of Appeals decision to mostly uphold FCC 2018 wireless infrastructure orders on small cells and local moratoriums (see 2008250023).

“Build a bridge where you are,” Baltimore Union Baptist Church Pastor Alvin Hathaway told NATOA Wednesday. Internet access is a social justice issue, he said. Lifeline and E-rate are “great at a national level,” but it’s important to think locally about how to expand internet, especially during a pandemic that exacerbated access problems for low-income families in his west Baltimore community, Hathaway said. Through a federal contract and partnership with the Union Baptist Church, Project Waves will erect a tower Friday on the place of worship that will immediately provide free wireless internet to 250 families in a five- to seven-block radius, the pastor said. Those families’ routers can become hot spots to expand service farther into the community, he said. “The goal is to connect 1,000 households.”