Bridging the Digital Divide from the Bottom Up
To deploy broadband infrastructure, providers often must sort through a variety of regulatory hoops and artificial restrictions before they can install the infrastructure. Primarily, local governments often use permitting review and access to public rights-of-way as a means to extract additional taxes on broadband service. Clearly, local governments can and do have a role to play in managing the installation of telecommunications infrastructure as there are public safety or historic preservation considerations, and managing these processes requires resources and costs money. However, when a locality uses these reviews as a means for raising revenue beyond what is actually necessary to manage the public rights-of-way and review the necessary permits, they limit the ability for providers to install the infrastructure that keeps Americans connected, pandemic or otherwise.
Fortunately, Congress understood the need to reduce these artificial barriers to deployment, allowing the Federal Communications Commission (FCC) to regulate pole attachments and establish procedures for expedited reviews for a variety of deployments.
Using its authority, the FCC has already done significant work streamlining the broadband deployment process. Most notably, the Commission passed two items in 2018, both establishing restrictions on excessive fees and delays caused by local reviews, as well as limiting the applicability of tribal review. But the Commission hasn’t stopped there. It issued a separate order establishing a one-touch make-ready (OTMR) policy which allows a single contractor to perform the necessary make-ready work for pole attachments. While interested parties challenged both the local review and OTMR orders, the Ninth Circuit just upheld the majority of the orders last week.
Beyond engaging in rulemakings to change federal regulations, the Commission has also updated outdated agreements with state historic preservation officers to clarify inconsistencies with historic preservation expedited review processes. Under the 2001 Nationwide Programmatic Agreement (NPA) for collocations, a collocation that required excavation beyond the current tower site was subject to historic preservation review. However, a separate 2004 NPA regarding historic preservation review for replacing towers and poles expressly exempted replacements that required excavation within 30 feet of the structure from historic preservation review. This inconsistency regarding the ability to excavate near the site ultimately stifled collocations of new 5G services, which need additional onsite components like mobile edge computing and backup power. The Commission’s new collocation agreement aligns the 2001 collocation agreement with the 2004 pole replacement agreement, resolving this problem.
Taken together, these efforts by the Commission will incentivize additional deployment of broadband services. With this increased deployment, more consumers will have access to broadband connections at lower prices. While this won’t solve the digital divide entirely, it will begin to bridge the gap.
But we still have more work to do.
Many proceedings before the Commission remain open. Most notably, the Commission is currently exploring whether Section 6409 expedited local review for collocations should include collocations with site expansions up to 30 feet from the site’s boundaries. The NPAs only cover historic preservation review; Section 6409 review covers local government review of eligible facilities requests and provides an expedited review to minimize barriers to deployment. However, a similar issue still exists; namely that 5G services require onsite computing and backup power which may remove a request from this expedited review. By determining that construction within 30 feet of the site doesn’t constitute a significant change and thus subjects the request to Section 6409, the Commission can harmonize local review standards with the NPAs and facilitate deployment.
Also, despite the OTMR victory in the courts, broadband providers still face challenges with pole attachments. When a broadband provider wants to attach equipment to a pole but the site requires a replacement to support the new infrastructure, the broadband provider must bear the entire cost of replacement. This does make some sense, as often times the owner wouldn’t replace the pole except for the additional attachments, or at least not as soon. Unfortunately, this can also stifle deployment, especially in rural areas where the business case for deployment is already difficult. NCTA recently filed a petition asking the Commission to require pole owners to share costs of replacing poles in rural areas to help alleviate this issue in areas with no access to broadband. This approach can help make the business case for deployment in more communities, helping ensure that rural Americans aren’t left behind.
Finally, even with the Commission’s big win on local barriers, states can still take steps to limit the restrictions imposed by localities. For example, R Street’s annual broadband scorecard ranks every state on laws ranging from access to public rights-of-ways, to dig once and zoning review. One category we consider that the FCC’s order didn’t address is a deemed granted remedy when a locality fails to act on an application within the existing shot clock. States can continue to build on the efforts of the Commission to better facilitate the deployment of broadband.
These policies will not bridge the digital divide entirely. Many individuals have access to broadband but still do not subscribe for a variety of reasons. But to the extent that increased access and cheaper options can further incentivize consumers to adopt broadband, reforming our infrastructure policies presents a perfect opportunity to further bridge the gap. The pandemic has shown the need for high-speed connectivity, and it is incumbent on the FCC to continue exploring every effort to reduce regulatory burdens and increase competition.
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