FCC set to preempt local right of way and permit authority

A sweeping review of how cities and counties manage public roads and approve construction permits for wired and wireless broadband infrastructure is on the table at the Federal Communications Commission. If approved, two draft decisions would, among other things, start the process of setting tighter limits on how and when local governments can establish standards for digging trenches or planting poles and boxes in public rights of way, and make wireless permit shot clocks absolute with an automatic deemed granted decision once time limits have expired and a ban on court challenges by local governments.

Federal laws and regulations give cities 60, 90 or 150 days to either approve permits for wireless facilities, depending on the type, or deny applications on a narrow set of grounds. In California, if the clock expires then the application is automatically granted (under state law for the 90 or 150 day clock, under federal law for the 60 day clock), but there is a window for court challenges. Some of the measures under consideration by the FCC would narrow that window, perhaps even close it completely, and would preempt any state discretion over how the time limits are managed, extended and enforced.

The FCC is also thinking about creating time limits for local review of broadband construction plans, including applications for permission to cut into streets and lay conduit and fiber lines, and to install vaults, boxes and poles (including, presumably, wireless towers by another name) along roads and on sidewalks. Along with that, the FCC could limit the fees that local governments charge for permits and restrict the scope for negotiation with would-be broadband infrastructure builders.

Other ideas under consideration include reforming pole attachment rules – a major barrier for new broadband service providers – and preempting state rules that govern when and how telephone companies can yank out copper networks. Last year, AT&T tried to ram a similar measure through the California legislature, but couldn’t overcome opposition from unions and other groups. That bill hasn’t resurfaced yet, and might not need to if the FCC federalises the process.

New wireline and wireless infrastructure policy is still far from final. All the FCC would do at its meeting later this month is begin the process for making the new rules, although the way the request for comments is currently framed shows that Pai has a pretty good idea of what he thinks needs to be done. Besides those two rulemaking proceedings, Pai also wants change how middle mile services are regulated. The FCC was on the verge of approving new rules last November, but was short circuited when Donald Trump won the election – more on that later. Changes to the Connect America Fund rural broadband subsidy program will also be considered, along with new rules for radio and TV stations.

Some ideas in the hundreds of pages of proposals are worthy and some are not. And changes could be made before the FCC votes on 20 April 2017. After that, there will be months of comments, replies and debates before actual new rules are drafted and, presumably, approved. So this isn’t the time to panic. Pai should be commended for publishing the full text of his proposals weeks ahead of the meeting, as he promised to do when he assumed the chairmanship. Previous FCC chairs kept the details secret until after commissioners voted, and sometimes for weeks after that. Now, even if we don’t like it, at least we know what’s coming.

Accelerating wireline broadband deployment by removing barriers to infrastructure investment, draft notice of proposed rulemaking, notice of inquiry, and request for comment, 30 March 2017
Wireless infrastructure, draft notice of proposed rulemaking and notice of inquiry, 30 March 2017
Business data services in an internet protocol environment, draft report and order, 30 March 2017
Connect america fund, draft order, 30 March 2017