Accelerating the deployment of broadband infrastructure is the very best thing the Federal Communications Commission (“FCC” or “Commission”) can do right now. Other high-profile proceedings may get more attention, but closing the Digital Divide and Homework Gap between rural and urban areas, and between wealthy and poor Americans, should be the FCC’s top priority. For these reasons, we applaud the Commission for putting forward this proposal seeking input on new ways to promote wireline broadband infrastructure deployment.
There is much that the FCC can do within its existing authority to preempt certain state or local practices that unreasonably restrict broadband deployment, and to require certain other steps be undertaken that reasonably can be expected to promote broadband deployment. However, those are not the only options available at hand. The FCC’s Broadband Deployment Advisory Committee (“BDAC” or “Committee”) was wisely established to convene reasonable discussions among relevant stakeholders, including industry experts, civil society groups, and policymakers from the state and local levels. The BDAC can play a pivotal role in dispute resolution and promotion of broadband deployment, while avoiding costly litigation over questions of authority or process. Thus, we encourage the FCC to exercise its preemptive authority only with respect to the limited cases in which states or localities clearly have run afoul of the Commission’s duties under the Communications Act.
Specifically, to promote wireline infrastructure deployment, we encourage the FCC to use its authority to ensure “just and reasonable” access to public rights of way, and further its duty to promote broadband deployment and competition, by doing three things: (1) Declare unlawful any fees that go above and beyond what is required to compensate states and localities fairly for the costs they incur in maintaining public rights of way; (2) declare unlawful any conditions that unreasonably restrict broadband deployment, providing less restrictive alternatives where appropriate; and (3) remove or amend any outdated rules that unreasonably delay the IP transition and network upgrades.