The Broadband Deployment Advisory Council (BDAC), established by the FCC in January 2017, has caused concern among groups interested in protecting local authority. On April 12th, the Coalition for Local Internet Choice (CLIC) voiced those concerns in a precisely worded letter to Ajit Pai’s FCC that spelled out the way the BDAC is running roughshod over local rights.
Leaving Out The Locals
As CLIC states in the beginning of their letter, the lack of local representation on the BDAC indicates that the FCC has little interest in hearing from cities, towns, and other local government. There’s plenty of representation on the Council, however, from corporations and private carriers.
From CLIC’s letter:
The audacity and impropriety of the process is clear from the fact that this entity, comprised primarily of corporate and carrier interests, is empowered by the Commission to develop model codes that could potentially impact every locality and state in the United States without any serious input from the communities it will most affect.
This group of individuals has been tasked with developing model codes that may be adopted at the local level; local input is not only necessary to create policies that are consider the needs of local folks, but that will work. To achieve productivity, BDAC needs to understand the environments in which their proposals may be adopted, otherwise their goal to be increasing broadband deployment may be compromised. Omitting a broad local perspective is not only improper it’s counterproductive.
The BDAC has already released a draft model state code, which has stirred up resistance and CLIC explains why. A key problem with the legislation is that it doesn’t appear to be backed up with anything other than philosophies, ideals, or self-interest, writes CLIC. Policy this important should be based on data.
They lay out eight specific and definable reasons why the proposed legislation falls flat for local communities.
1. The legislation proposes that states take the lead and adopt a two-phase approach that would, ultimately, discourage local communities from making headway in broadband deployment.
If communities want to step forward to take advantage of these opportunities as rapidly as possible, it would not only be irrational, but unconscionable, for any state to hold them back, particularly by tethering them to the second-rate offerings of providers that are unwilling or unable to give communities the capabilities they want.
2. The drafters of the model state code don’t really understand the meaning of “municipal network.” They state that it’s preferable that municipal networks “be built, owned, and operated by private industry.” As the folks at CLIC point out, there are several models of munis, but they all include some element of public ownership. They also note that, local communities that invest in gigabit connectivity are more likely to achieve the goals the BDAC establish than states that adhere to the FCC’s broadband definition of 25 Megabits per second (Mbps) download and 3 Mbps upload.
3. CLIC points out that sections of the model legislation puts special focus on rural areas, but as CLIC points out, no area should be singled out because of population density. Not all rural communities are alike and not all densely populated regions are the same.
4. The model legislation, as drafted, also mandates that rural elected officials put broadband deployment through public-private partnership before any other local need.
There is no reasonable way for a state to force local leaders to prioritize broadband over other perceived local needs and to acquire advanced communications capabilities, particularly in an order of preference that may not be in the best interest of their communities.
The BDAC made this mistake because it lacks local voices.
5. In another section focusing on rural communities, the proposed legislation hints at the kinds of restrictions on local telecommunications authority we’ve seen in about 20 states. If this code were adopted, local communities must jump through numerous hoops prior to investing in their own high-quality Internet networks. This penchant for overriding local decision-making coupled with the proposed legislations ambiguous language opens a potential legal black hole that could swallow local communities. Their options appear to be to take what they can get from large national providers or risk falling into that black hole; it isn’t much of a choice for small communities with limited resources.
6. A once-sided provision in the draft legislation requires any publicly owned network to allow private entities to have access to dark fiber, towers, buildings, and other assets. Big ISPs have fought for years to prevent competitors to have access to their infrastructure, but they have no qualms about taking advantage of others’.
7. The model legislation would require municipalities to consider what it describes as “Balanced Public-Private Partnerships.” As described in the proposed language, that would entail public funds to build infrastructure and an arrangement in which a private provider has “an exclusive franchise agreement for a finite period of time.” The language goes on to dictate that the private sector partner be allowed a contract until they are allowed to recover any capital investment and then the network be transferred to open access with the private sector partner as operator. While offering fixed-period exclusivity to a private sector partner is one of several models community’s use, they typically retain control of a portion of their dark fiber for their own use and control.
8. Lastly, CLIC wonders why the BDAC has not recommended removal of state laws like the ones in North Carolina and Tennessee that restrict deployment, rather than encourage it. The FCC has once before found that such state laws are counterproductive — now would be an opportunity to reverse that negative course. CLIC’s CEO Joanne Hovis and President Jim Baller rightly point out that this new “model” state code would likely have the opposite affect of the BDAC stated goal of accelerated broadband deployment.
At the same time, the model state legislation could result in new barriers in states that do not already have them, creating significant new impediments to broadband deployment—in the guise of fostering deployment.
Indeed, this incongruity between the stated goals of the BDAC and its output is at the root of our deep concerns with the BDAC process and recommendations: It is truly Orwellian that the entity purporting to advise on “broadband deployment” should be proposing significant barriers to new deployment. And given the dearth of local government participation in the process, this comes as no surprise.
On behalf of CLIC, we register our deep concern regarding the Commission’s creation, constitution, and oversight of the BDAC, as well as our deep concern regarding the draft model state code and its deleterious impact on true broadband deployment.