If You Want Broadband, You’ve Got To Get It Built

With expanding broadband as its defining priority, the FCC is taking a number of steps to facilitate the deployment of broadband facilities. We recently wrote on the FCC’s new pole attachment order, intended to expedite and lower the cost of access to utility poles. In a companion Notice of Inquiry, published today in the Federal Register, the Commission will be exploring ways that local governments and other authorities can help improve rights-of-way access and facility siting, both of which are key to mobile broadband deployment. Comments on the NOI are due by July 18 and Replies are due August 30. 

To give the FCC’s action some context, it has been estimated that the wireless industry has deployed some 250,000 cell sites in the U.S. in the last 25 years. With 4G deployments, which require sites deeper into the network, one analyst estimated that the country will need 2.4 million sites by 2020 to support the expected level of mobile broadband traffic. For those who remember the battles a few years back between the telecom industry and local governments, as well as agencies managing federal lands, a real question exists as to how that all gets done.

Enter the FCC and the facilities deployment NOI, which has identified and seeks comment on various points of contention between industry and government affecting broadband buildout, in an effort to identify a comprehensive solution. These include timeliness and ease of the permitting process; reasonableness of rights-of-way and other charges; outdated ordinances and statutes, including the treatment of small antenna systems on existing facilities (known as Distributed Antenna Systems or DAS); differing regulation between rights-of-way access, including traditional pole attachments versus wireless facilities siting; and opportunities for FCC intervention and best practices.

Joanne Hovis, incoming president of the National Association of Telecommunications Officers and Advisors (NATOA), recently struck a conciliatory tone on these issues in a live webcast conversation with K&L Gates Partner Marty Stern at the Broadband Properties Summit Economic Development Conference in Dallas, carried on Broadband US TV. Ms. Hovis stressed local governments’ interest in helping to facilitate broadband deployment, and that she hoped the FCC’s discussion would focus on collaboration between local government and industry, rather than preemption, litigation and antagonistic processes.

Striking a similar chord, in an earlier letter to Chairman Genachowski, local government groups stressed that the NOI focused too much on past practices as well as right-of-way compensation issues, with insufficient attention on how local governments, the FCC and industry can work cooperatively on these issues. In contrast, wireless industry groups such as CTIA largely praised the NOI after its release, stating the proposals will help “unlock greater efficiencies in rights-of-way and wireless facilities siting policies to speed broadband deployment.”

It remains to be seen what the ultimate tenor of the proceeding will be, and whether the FCC will seek to broker common ground between industry and local governments, or if the agency will examine areas where it might take more aggressive actions that local governments will undoubtedly resist. An additional wild card with this issue is how to deal with local community opposition to wireless projects, that have stopped projects cold, even where the projects may have had the support of local officials. As to telecom access to federal and tribal lands, perhaps the Administration should examine reenergizing the Federal Rights of Way Working Group, an interagency group led by the NTIA, which did a report in 2004 on best practices at the federal agencies for facilitating the deployment of telecom infrastructure, but has not been heard from since.