Some Question Carr Welcoming NATOA to the Table
FCC Commissioner Brendan Carr extended an olive branch to local governments at NATOA’s virtual conference Tuesday. Later, some local officials raised eyebrows due to the Republican’s work on preemptive decisions. Federal overriding could continue even if President Donald Trump loses to Democratic nominee Joe Biden in November’s election, warned National League of Cities Legislative Manager Angelina Panettieri.
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Carr praised local governments in a prerecorded video: “Your voices are so important” and “you need to be at the table.” As the FCC worked to promote infrastructure deployment, the agency heard local government concerns “loud and clear” and tried “to maintain local control over aesthetics and similar considerations,” he said. Carr declared victory against localities last month at the 9th Circuit U.S. Court of Appeals on preemptive wireless infrastructure rules (see 2008250023).
“I would question whether he has truly engaged with a wide group of local governments in the past, but I’m pleased that he says he’s willing to do so,” said local telecom attorney Ken Fellman, a former NATOA board member who attended. “I’ll give him the benefit of the doubt, and I’m sure that NATOA members will follow up on his offer and ask him to engage in discussions.”
“We've actually been at the table all along. We just weren't listened to,” said Spiegel McDiarmid’s Tim Lay on the NATOA conference chat. “True,” replied Virginia Beach Associate City Attorney Debra Bryan, recently appointed to the FCC Intergovernmental Advisory Committee. Speaking on a regulatory panel, Panettieri said Carr “has been the most vehemently anti-local government commissioner.” Carr didn’t comment.
Carr will remain on the FCC no matter who wins the presidential election, and possible Democratic victories in the presidential or congressional races won’t necessarily “turn the tide in a huge way on some of our preemption concerns,” especially on wireless, Panettieri cautioned NATOA. Awareness remains low on Capitol Hill about the true impact of fees and other local policies, she said. “Policymakers are looking for a cheap way to say that they’re helping expand broadband access, and if the big companies are saying that they’re going to close the digital divide with 5G if you just preempt the local governments at zero cost to the federal government ... that’s very compelling. So the onus is on us to engage with whoever comes into the White House in January [plus] all of the new and returning members of Congress, to educate them about what we’re doing and make sure that they see us as partners and not roadblocks.” Talk now to legislators about the 9th Circuit decision and urge they co-sponsor S-2012 and HR-530 to overturn the FCC’s small-cells order, she said.
Local governments won on aesthetics but not fees at the 9th Circuit, Lay said. The fees ruling was most problematic due to its potentially adverse impact for local governments, as was the court’s poor justification, he said. Fairfax County, Virginia, Communications Policy and Regulation Division Director Rick Ellrod sees the cost-based fees ruling as “the most dangerous aspect of the decision,” he wrote in the panel’s chat session. “It could have unpleasant applications in a number of other areas.”
Lay predicted a decision next year on cities challenging an FCC cable local franchise authority order. Briefing wraps in October and Lay expects oral argument in Q1 at the 6th Circuit, he said. “The result of the FCC’s order if allowed to stand will be that local governments will see less and less compensation for cable operators using their right of way, while the cable operator makes more and more money from using that.”
“During this pandemic, broadband isn’t just an essential service,” said Colorado Attorney General Phil Weiser (D) in an earlier keynote. “It’s the lifeline.”
NLC expects Congress to provide targeted broadband money by year-end but maybe not until the lame-duck session after the election, Panettieri said: “So many races are competitive that it makes it difficult for legislators to reach bipartisan agreements.”
Local and consumer officials sought expanded broadband access. Libraries and McDonald’s are no longer options for people who don’t have internet at home, “at least not if we want folks to stay safe,” said National Digital Inclusion Alliance Director Angela Siefer. “Those are workarounds that don’t work anymore.”
School started up again virtually in San Antonio, and “we don’t know when students are going to be able to return safely,” said Gabriel Garcia, director of the city-owned CPS Energy. He urged the FCC immediately allow E-rate support for backhaul that could support private wireless networks to connect students at home.