MUNICIPAL RIGHT-OF-WAY AUTHORITY IN FCCS CROSSHAIRS
The Federal Communications Commission (FCC) has released a “Notice of Inquiry (NOI)” (view the NOI at http://www.fcc.gov/Daily_Releases/Daily_Business/2011/db0407/FCC-11-51A1.pdf) regarding local right-of-way regulations and franchise fees and how the agency can “work with” cities “to improve policies for access to rights-of-way and for wireless facility siting.” The NOI could result in federal rules that preempt city right-of-way management authority and/or franchise fees.
Specifically, the NOI seeks information and data regarding challenges, best practices, and educational efforts to help the FCC accurately determine the need for policy and rules surrounding broadband deployment.
No one should mistake the neutral language in the NOI as being city-friendly. Similar NOIs in the past relating to cable franchising and wireless tower siting have resulted in severe curtailment of municipal authority. The Texas Municipal League, along with the National League of Cities, the National Association of Counties, the National Association of Telecommunications Officers and Advisors, the U.S. Conference of Mayors, and the International Municipal Lawyers Association, will be submitting detailed comments and legal authority to protect municipal interests.
It is essential that each city also submits comments, which are due by July 18, 2011.
- For cities with a high level of activity relating to broadband deployment in their rights-of-way and/or wireless tower locating, NLC has created a detailed template to assist you with preparing comments. To view that template, go to http://www.nlc.org/File%20Library/Influence%20Federal%20Policy/Advocacy/Regulatory/comment-template-fcc-noi-broadband-deployment-apr-2011.docx. For comments on how to use the template and detailed electronic filing instructions, go to http://www.nlc.org/File%20Library/Influence%20Federal%20Policy/Advocacy/Regulatory/comment-template-instructions-fcc-noi-broadband-deployment-apr-2011.pdf.
- For cities that aren’t experiencing a high level of activity in this area, comments are still needed. A simple statement to the effect that no company or person has complained that a city’s right-of-way policies are limiting broadband deployment is sufficient. The FCC has a very simple, express filing system that allows you to enter your contact information and type or cut and paste brief comments on an electronic form. To use that system, go to http://fjallfoss.fcc.gov/ecfs/ and click on proceeding number 11-59.
City participation in this federal process is imperative to protecting municipal authority and revenue.