As Mayors must concern themselves with everything from public safety and health to the development of the local economy and the provision of essential municipal services, they tend to have a particular focus on the infrastructure necessary to support it all, amid a cacophony of competing interests.

Over the summer, having reached consensus on the fundamental importance of “the digital infrastructure of tomorrow,” a particular focus of the United States Conference of Mayors 88th National Annual Meeting was to issue a resolution declaring the necessity of “Preserving Local Public Rights-of-Way and Regulatory Authority to Most Effectively Deploy 5G Broadband Access and Bridge the Digital Divide during the COVID-19 Pandemic.”

The Mayors’ resolution comes in response to the Federal Communications Commission’s (FCC's) 2018 preemption of local governments’ authority to regulate 5G infrastructure in their cities. 

At the heart of the regulatory debate: local governments’ ability to determine the amount of fees to charge mobile carriers that want to place 5G equipment in Rights-of-Way. In addition to putting limits on those fees, the FCC Order also sets strict timelines by which cities and towns must respond to carrier applications. The FCC decision, issued over the objections of industry observers and policy experts, essentially eliminates local communities’ ability to negotiate in order to protect their own Rights-of-Way and the poles, traffic lights, and other potential structures within those Rights-of-Way.

Preempting Local Authority

When the FCC handed down the order in the fall of 2018 we noted that it represented a significant giveaway to wireless carrier corporations while placing additional restrictions and undue financial burdens on local regulators, most of which are county boards and city departments. 

To justify the order, the...

That community networks act as a positive force in the broadband market is something we’ve covered for the better part of a decade, but a new study out in the journal Telecommunications Policy adds additional weight (along with lots of graphs and tables) which shows that states which enact barriers to entry for municipalities and cooperatives do their residents a serious disservice. 

“State Broadband Policy: Impacts on Availability” by Brian Whitacre (Oklahoma State University) and Robert Gallardo (Purdue University), out in the most recent issue of the journal, demonstrates that enacting effective state policies have a significant and undeniable impact on the pace of basic broadband expansion in both rural and urban areas, as well as speed investment in fiber across the United States. 

Digging into the Data

The research relies on the State Broadband Policy Explorer, released in July of 2019 by Pew Charitable Trusts, and focuses on broadband availability across the country from 2012-2018. Whitacre and Gallardo control for the other common factors which can affect whether an area has broadband or not (like household income, education, and the age of the development), and combine the FCC’s Form 477 census block-level data along with county-level data to explore expansion activities over the seven-year period. By making use of an analytical model called the Generalized Method of Moments, Whitacre and Gallardo are able to track all of these variables over a period of time to show that there is a statistically robust connection between specific state policies and their influence on the expansion of broadband Internet access all over the United States. 

The authors zero in on three particular policies that they say have among the most significant impact on whether a community has broadband or not: whether or not the state has passed laws restricting municipalities and cooperatives from building and operating broadband networks; whether or not the state has a broadband office devoted to expansion and staffed by full-time employees; and whether or not the state has a funding program...

Milwaukee County, Wisconsin, is currently experiencing firsthand the consequences of the Federal Communications Commission’s (FCC's) 2018 preemption of local governments’ authority to regulate 5G infrastructure in their cities. With its initial handful of applications for new small cell transmitters just submitted to the county board by Verizon under the new rules, local officials are grappling with a host of limitations — including fee caps, shorter timing windows, and rights of way exemptions — which outline clearly a problem more and more communities will face in the coming months and years.

Less Say, Less Money

We pointed out when the FCC handed down the order in the fall of 2018 that it represented a significant giveaway to wireless carriers while placing additional restrictions and financial burdens on local regulators, most of which are county boards and city departments. Among the most troublesome of the order’s provisions are new 60- and 90-day approval windows for the installation of infrastructure on existing and new wireless facilities, a limitation to annual fee scales for small cell sites set between $100-250, a right now enjoyed by wireless providers to place infrastructure on municipally owned poles and traffic lights, and a rule that says if regulating authorities don’t get to an application within sixty days it automatically becomes approved. The 9th U.S. Circuit Court of Appeals upheld the fee cap in a ruling last Wednesday.

In sum, it puts additional strain on local governments (many of whom are already stretched thin) while limiting their ability to set their own fees for access to publicly owned infrastructure as well as the expedited work they are being forced to do. At the time, opponents called it a public tax on private 5G deployment, a giveaway,...

As the pandemic drags on, local governments across the country are looking for ways to connect their residents, who need better Internet access for everything from online education to annual taxes to telehealth appointments. But 19 states still place restrictions on cities and counties that want to invest in broadband expansion, hamstringing their ability to address urgent connectivity needs.

To help people figure out if their community is able to take action, we worked with the Local Solutions Support Center (LSSC) to develop a step-by-step guide for local officials and advocates. The guide includes the various considerations communities must make when developing a Covid-19 broadband response, including the extent of local government authority, state legal restrictions, and declaration of emergency powers.

LSSC describes the guide:

As the coronavirus pandemic spreads, local elected officials and advocates alike are asking what they can do for their communities across a range of policies — including to ensure that everyone has broadband Internet access available. This guide can help you determine whether your community has the authority it needs to adopt a particular policy.

View the guide on LSSC’s website or download the PDF below.

“What’s the Policy?”

The guide takes people through the following questions and action steps:

• What’s the Policy?
• Is there Existing Authority?
• Is the Policy Expressly Preempted?
• Is there a Conflict with State Law or Other Barrier?
• What is the Extent of Emergency Powers?
• Demand State Action

For the different steps, the guide offers an explanation, identifies examples from different states, and suggests resources for further research. For example, under “Is there Existing Authority?” the guide directs communities to look at state and...