NATOA Wants More Broadband, Less Preemption in 2021
COVID-19 required local governments step up to expand internet access and broadcast critical information, NATOA President Brian Roberts and General Counsel Nancy Werner told us. NATOA hopes “to spend less time responding to FCC preemptive orders” next year, and more time supporting local effort to fill gaps shown by the pandemic, Werner said during the group's virtual meeting this week.
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Without a federal policy on expanding "Lifeline, E-rate and telehealth in a significant way, we’ve had to step in,” Roberts said. Cities and counties are working with schools to expand internet access through public Wi-Fi, distributing hot spots and negotiating with cable companies for discounted service to low-income consumers, said the city/county of San Francisco policy analyst. Localities also emphasized making public health data available quickly and increasing public participation through virtual meetings, he said.
Public, educational and government channels are critical to sharing local information about the coronavirus, said Werner. The virus increased local telecom officers’ workload, and many are doing jobs they never did before, she said. Preemptions don’t help during a public health crisis, Werner said. NATOA and the National League of Cities spoke with the Wireless Infrastructure Association in late spring about local permitting amid the pandemic, Werner said. WIA members promised to be flexible with shot clocks, and the general counsel hadn’t heard about any conflicts. Industry seemed to fear there would be problems, but “most communities were easily able to pivot.”
Support for municipal broadband may be growing as the pandemic flags access problems, said Werner, predicting some states might reconsider restrictions on local governments. “Now, more than ever, everyone’s starting to listen,” she said. “We are having more serious conversations around how to reach people with affordable services that have been left behind thus far, and the municipal option is becoming more part of the discussion.”
NATOA had a mixed 2020 on telecom policy as the FCC continued to push against local control in cable and wireless, said Werner. One win was the 9th U.S. Circuit Court of Appeals tossing FCC preemption of aesthetic review authority for small cells. The court upheld other parts of the order and municipal governments are eyeing next steps. With localities also challenging last year’s cable local franchise authority order in the 6th Circuit (see 2009020052), “the jury’s still out ... on a number of those preemptions,” the lawyer said. Commissioner Brendan Carr, who supported preemptive actions, extended an olive branch to local governments Tuesday (see 2009010053).
San Francisco is seeing a “steady increase” but no “flood” of small-cell installations, Roberts said. Winning on aesthetics at the 9th Circuit was good, “but we’re still constrained by the shot clocks,” he said.
Werner didn’t expect much FCC action before the election, particularly after President Donald Trump yanked Commissioner Mike O’Rielly’s renomination. Trump and Democratic nominee Joe Biden both talked about infrastructure, so whoever wins, “I’m hoping that broadband becomes the focus,” she said. The pandemic shows telehealth and the homework gap must be priorities, said Roberts. “Sometimes, these authority fights become a distraction.”
NATOA is talking with members about diversity as many organizations reckon with social justice after the George Floyd killing, said Roberts. “We’re trying to ... incorporate racial equality principles in our training and education materials for our members and the kinds of programs we put on,” he said. “We’re not going to go for grandiose statements. We’re going to try to listen to communities of color.”
Expect industry to go to the states if the FCC’s small-cells order gets reversed, Best Best local telecom attorney Gail Karish warned Thursday. Local governments are weighing an appeal of the 9th Circuit upholding the FCC. Democrats in Congress have bills to overturn the FCC order, but passing such legislation wouldn’t preempt more than 25 state small-cells laws, said Karish. When industry isn’t successful in one tier of government, they usually try another, she said.
Don’t expect many more state small-cells bills next year, since industry scored a win on federal fee caps at the 9th Circuit, said Telecom Law Firm’s Tripp May. That story isn’t over yet, and if the FCC ends up losing next year, there could be a “flurry” of state activity in 2022, he said.
Who controls Congress after the election will be most important for local issues, said Werner. In the panel's chat session, Best Best’s Gerard Lederer said a change in FCC leadership could have big impact. Roberts agreed. “We have a good indication of how Commissioners [Jessica] Rosenworcel and [Geoffrey] Starks would approach pre-emption issues,” he wrote. Michigan locality group Protec’s General Counsel Mike Watza added that “big elected changes at the State level will be a big assist as well.”