[Federal Register Volume 76, Number 95 (Tuesday, May 17, 2011)]
[Proposed Rules]
[Pages 28397-28403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-11966]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Chapter I
[WC Docket No. 11-59; FCC 11-51]
Acceleration of Broadband Deployment by Improving Policies
Regarding Public Rights of Way and Wireless Facilities Siting
AGENCY: Federal Communications Commission.
ACTION: Notice of inquiry.
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SUMMARY: In this document, the Federal Communications Commission seeks
to work with stakeholders including state and local governments, other
Federal agencies, Tribal governments, consumer advocates, and the
private sector to identify means of improving rights of way policies
and wireless facilities siting requirements. Policies for managing
rights of way and siting wireless facilities, including the procedures
and costs for acquiring permission to build, affect how long it takes
and how much it costs to deploy broadband. By working together with
other interested parties on these issues, the Commission can reduce the
costs and time required for broadband deployment, both fixed and
mobile, which will help unleash private investment in infrastructure,
increase efficient use of scarce public resources (including spectrum)
and increase broadband adoption.
DATES: Comments are due July 18, 2011 and reply comments are due August
30, 2011.
ADDRESSES: You may submit comments, identified by WC Docket No. 11-59,
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Federal Communications Commission's Web Site: http://fjallfoss.fcc.gov/ecfs2/. Follow the instructions for submitting
comments.
People with Disabilities: Contact the FCC to request
reasonable accommodations (accessible format documents, sign language
interpreters, CART, etc.) by e-mail: [email protected] or phone: 202-418-
0530 or TTY: 202-418-0432.
For detailed instructions for submitting comments and additional
information on the rulemaking process, see the supplementary
information section of this document.
FOR FURTHER INFORMATION CONTACT: Claudia Pabo, Wireline Competition
Bureau, Competition Policy Division, 202-418-1595.
SUPPLEMENTARY INFORMATION:
Pursuant to Sec. Sec. 1.415 and 1.419 of the Commission's rules,
47 CFR 1.415 and 1.419, interested parties may file comments on or
before July 18, 2011 and reply comments on or before August 30, 2011.
Comments may be filed using: (1) The Commission's Electronic Comment
Filing System (ECFS), (2) the Federal Government's eRulemaking Portal,
or (3) by filing paper copies. See Electronic Filing of Documents in
Rulemaking Proceedings, 63 FR 24121 (1998).
Electronic Filers: Comments may be filed electronically
using the Internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/ or the Federal eRulemaking Portal: http://www.regulations.gov.
Paper Filers: Parties who choose to file by paper must
file an original and four copies of each filing. If more than one
docket or rulemaking number appears in the caption of this proceeding,
filers must submit two additional copies for each additional docket or
rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial
overnight courier, or by first-class or overnight U.S. Postal Service
mail. All filings must be addressed to the Commission's Secretary,
Office of the Secretary, Federal Communications Commission.
All hand-delivered or messenger-delivered paper filings
for the Commission's Secretary must be delivered to FCC Headquarters at
445 12th St., SW., Room TW-A325, Washington, DC 20554. All hand
deliveries must be held together with rubber bands or fasteners. Any
envelopes must be disposed of before entering the building.
Commercial overnight mail (other than U.S. Postal Service
Express Mail and Priority Mail) must be sent to 9300 East Hampton
Drive, Capitol Heights, MD 20743.
U.S. Postal Service first-class, Express, and Priority
mail must be addressed to 445 12th Street, SW., Washington, DC 20554.
People with Disabilities: To request materials in accessible
formats for people with disabilities (braille, large print, electronic
files, audio format), send an e-mail to [email protected] or call the
Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-
418-0432 (tty).
Filings and comments are also available for public inspection and
copying during regular business hours at the FCC Reference Information
Center, Portals II, 445 12th Street, SW., Room CY-A257, Washington, DC
20554. They may also be purchased from the Commission's duplicating
contractor, Best Copy and Printing, Inc., Portals II, 445 12th Street,
SW., Room CY-B402, Washington, DC 20554, telephone: (202) 488-5300,
fax: (202) 488-5563, or via e-mail http://www.bcpiweb.com.
Initial Paperwork Reduction Act of 1995 Analysis
This document does not contain proposed information collection
requirements subject to the Paperwork Reduction Act of 1995, Public Law
104-13. In addition, therefore, it does not contain any proposed
information collection burden for small business concerns with fewer
than 25 employees, pursuant to the Small Business Paperwork Relief Act
of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).
Below is a synopsis of the Commission's Notice of Inquiry in WC
Docket No. 11-59, adopted and released April 7, 2011.
[[Page 28398]]
Synopsis of Notice of Inquiry
I. Introduction
1. This Notice of Inquiry (Notice) concerns key challenges and best
practices in expanding the reach and reducing the cost of broadband
deployment by improving government policies for access to rights of way
and wireless facilities siting. In this proceeding we seek to work with
stakeholders including state and local governments, other Federal
agencies, Tribal governments, consumer advocates, and the private
sector to identify means of improving rights of way policies and
wireless facilities siting requirements. By working together on these
issues, we can reduce the costs and time required for broadband
deployment, both fixed and mobile, which will help unleash private
investment in infrastructure, increase efficient use of scarce public
resources (including spectrum), and increase broadband adoption.
2. Providing broadband service requires the deployment and use of
varied and physically dispersed communications infrastructure that is
placed in public and private rights of way and on towers and building
roof tops. Access to public rights of way, tower sites, and buildings
is governed by Federal, state, local, or Tribal requirements depending
on the location. Obtaining access to rights of way on fair and
reasonable terms, and through a predictable process, is critical for
all infrastructure providers.
3. This Notice is intended to update our understanding of current
rights of way and wireless facilities siting policies, assess the
extent and impact of challenges related to these matters, and develop a
record on potential solutions to these challenges. This inquiry is a
necessary step towards determining whether there is a need for
coordinated national action to improve rights of way and wireless
facilities siting policies, and, if so, what role the Commission should
play in conjunction with other stakeholders. We seek a detailed record
of the nature and scope of broadband deployment issues, including both
best practices that have promoted deployment and matters that have
resulted in delays.
4. The Commission is most interested in systemic practices rather
than individual or anecdotal situations, which are less suited for
Federal policies. So that we might have a factual basis upon which to
determine the nature and extent of any problems, we ask commenters to
provide us with information on their experiences, both positive and
negative, related to broadband deployment. In the case of comments that
name any state or local government or Tribal or Federal entity as an
example of barriers to broadband deployment, we strongly encourage the
party submitting the comments to name the specific government entity it
is referring to, and describe the actions that are specifically cited
as an example of a barrier to broadband deployment, as this is the best
way to ensure that all affected parties--the relevant governmental
entity, citizens and consumer groups, and other private parties that
have sought access in the area--are able to respond to specific
examples or criticisms. Identifying with specificity particular
examples or concerns will ensure that the Commission has a complete
understanding of the practices and can obtain additional background if
appropriate. In turn, we ask government entities to explain the policy
goals underlying their current practices and charges regarding rights
of way and wireless facilities siting. We seek to identify best
practices, systemic challenges and fully consider possible steps the
Commission can take, in partnership with Federal, state, local, and
Tribal governments--with input from consumer groups and industry--to
foster improvements in these areas.
5. The Commission may move forward in other contexts to act on
individual issues raised here, as appropriate, without awaiting
completion of this proceeding.
II. Rights of Way and Wireless Facilities Siting Issues
6. In this section, we describe the various types of possible
issues regarding rights of way governance and wireless facilities
siting requirements, and we seek input in order to obtain a more
complete understanding of these areas. We seek to develop a complete
record of how rights of way and wireless facilities siting decisions
influence build out and adoption of broadband and other communications
services. We believe that rights of way and wireless facilities siting
issues can generally be broken into several broad categories: (1)
Timeliness and ease of the permitting process; (2) the reasonableness
of charges; (3) the extent to which ordinances or statutes have been
updated to reflect current communications technologies or innovative
deployment practices; (4) consistent or discriminatory/differential
treatment; (5) presence or absence of uniformity due to inconsistent or
varying practices and rates in different jurisdictions or areas; (6)
other rights of way concerns including ``third tier'' regulation or
requirements that cover matters not directly related to rights of way
use or wireless facilities siting. We ask commenters to describe the
specific kinds of public rights of way and wireless facilities siting
issues that exist in each of these areas. Do some of these issues
particularly affect various categories of rights of way owners,
wireless facilities siting authorities, network users, or network
functions? We also ask interested parties to describe best practices in
each of these areas.
A. Timeliness and Ease of the Permitting Process
7. The Commission recently addressed the timeliness of state and
local permitting processes for tower siting in the Shot Clock Ruling,
74 FR 67871 Dec. 21, 2009, which set a timeline for action on
collocation and other tower siting applications. We seek comment on the
application of the Shot Clock Ruling, and its efficacy in reducing
delays in the local zoning process. In particular, has the Shot Clock
Ruling reduced the number of collocations pending before state and
local government authorities for periods of longer than 90 days, and
the number of applications other than collocations pending for longer
than 150 days? Has this approached proved satisfactory from the
perspective of the communities in resolving actions for collocation?
Have individual cases been taken to district courts for zoning
authorities' failure to act, and if so, how did the courts apply the
Shot Clock Ruling? Do parties believe that adoption of the Shot Clock
Ruling has resulted in faster rulings from state and local government
authorities? In answering these questions, parties should provide as
much specificity as possible.
8. We also seek updated information on the timeliness and ease of
permit processing for rights of way and siting of wireless facilities.
Are application processes defined with sufficient clarity? Is
information on all necessary application procedures, forms, substantive
requirements, and charges readily accessible? How do rights of way
holders and wireless facilities siting authorities handle new or novel
requests for access to rights of way or tower and antenna sites? Are
there processes in place for addressing situations in which it is
difficult to identify the rights of way holder? How could the
application process be streamlined in certain situations, such as where
an infrastructure provider seeks to collocate new facilities on an
existing tower? Is the process for obtaining permits for accessing
rights of
[[Page 28399]]
way or siting wireless facilities timely? To the extent applications
are not processed in a timely fashion, what factors are responsible for
delays? Are there types of errors, omissions, or substantive
requirements in applications that frequently lead to rejection,
dismissal, or return of the applications? What application processing
timeframes are reasonable? Are there particular practices that can
improve processing time frames?
9. We also ask commenters to provide data about their experiences
and situations. We ask commenters to submit data related to processing
intervals for permit approval, both targeted and actual, for all
relevant providers (data submitted by rights holders) and communities
(data submitted by infrastructure providers). We ask that any submitted
data be broken out in as disaggregated a fashion as possible. For
example, we encourage commenters to include for each application the
name of the provider; name of the location or community; type of
project, including whether a project is wholly new or an augmentation
of an existing facility (e.g., wireless collocation on existing
structure); whether the community is subject to comprehensive state
franchising or rights of way laws; and total time to process
applications. To the extent that certain activities during a particular
approval took an unusual length of time, we encourage participants to
provide any relevant details, such as pre-processing time devoted to
obtaining a complete-as-filed application, time spent negotiating, or
time spent waiting for events external to the application process.
Commenters also should include any other relevant categories of data or
explanations that will make their submissions more informative.
B. Reasonableness of Charges
10. To what extent and in what circumstances are rights of way or
wireless facilities siting charges reasonable? Is it possible to
identify rights of way or wireless facilities siting charges that all
stakeholders agree are reasonable? If not, are there rate levels that
most infrastructure providers agree are reasonable, and different rate
levels that most government entities agree are reasonable? Are there
instances and circumstances in which rights of way or facilities siting
charges are unreasonable? What are appropriate criteria for determining
the reasonableness of such charges? For example, are permitting or
application fees unreasonable to the extent they exceed amounts that
would recover administrative and other specifically identifiable costs?
Are ``market based'' rates for use of public rights of way or publicly-
owned wireless facilities sites reasonable? In particular, how are
market-based rates or other non-cost based rates for public rights of
way determined when, in many situations, there does not appear to be a
competitive market for public rights of way? Are market-based rates
substantially higher than cost-based rates?
11. We ask commenters to provide factual data to help the
Commission understand existing charges and practices. We seek data on
current permitting charges, including all recurring and non-recurring
charges, as well as any application, administrative, or processing
fees. In presenting these data, we ask commenters to identify such
information as the type of facilities for which such charges are
assessed; how such charges are structured (e.g., per foot or percent of
revenue in the case of rights of way fees); whether the community is
subject to comprehensive state franchising or rights of way laws;
whether the charges are published in advance or individually
negotiated, designed to approximate market rates or merely recover
costs (direct and/or indirect), and accompanied by comprehensive terms,
and conditions; and the value of any in-kind contributions required for
access or permit approval. We also request commenters to include
information that enables us to determine the extent to which such
charges are related to impacts on the local community, such as pavement
restoration costs for projects that involve trenching in roadways. We
recognize that certain information may disclose competitively sensitive
information and we understand the need to aggregate such data across
multiple communities or providers, or otherwise present it in a way
that does not disclose any competitively sensitive data.
12. We also seek information on how a market-based charge is
calculated in the context of various types of fees. For example, do
per-foot fees and other usage fees vary depending on the number of
providers that need access to the rights of way and the amount of fiber
or other facilities each such provider places in the rights of way (a
measure of demand)? To what extent do entities vary such fees based on
other market factors, for example, the available supply, such as the
remaining usable space within a conduit system in the rights of way, or
the amount of land available to accommodate a new system? We also are
interested in understanding how the levels of percent-of-revenue fees
are set in order to achieve a market-based rate.
13. We also invite comment on whether there are specific
circumstances in which rights of way or wireless facilities siting
charges are more likely to be unreasonable. For example, once an
infrastructure provider has placed facilities in a public right of way,
incurring sunk costs, is the public rights of way holder frequently in
a position to exercise market power in establishing subsequent charges,
such as on renewals of long-term contracts or requests to make changes
to a vitally important network facility? Are there specific situations
where such market power has been exercised? How can instances of the
exercise of market power be identified? What situations are most likely
to cause wireless facilities siting charges to be unreasonable? Do
rights of way or wireless facilities site administrative and/or usage
fees vary by the demographics of the customer base? For example, do
holders of public rights of way, government owners of tower or antenna
sites, and/or government entities regulating wireless facilities sites
located in dense, urban, and/or suburban high-income areas tend to
impose higher fees than government entities in other areas, and are
such differences reasonable?
14. We also request comment on the ways in which rights of way or
wireless facilities site processing or usage charges affect broadband
subscribers. Are such charges imposed on a broadband provider
ultimately passed on to that provider's customers? What fraction of a
broadband provider's costs do public rights of way and governmental
wireless facilities site or administrative fees typically represent?
Insofar as broadband providers charge geographically averaged rates,
high rights of way and wireless facilities siting charges will be
recovered by providers in part from consumers in other jurisdictions
rather than recovered directly from consumers within the jurisdiction
imposing the high charges. To what extent should this affect the
analysis of rights of way and wireless facilities siting charges? For
example, should we be concerned about excessive charges if they are
transparent and recovered solely from residents of the jurisdiction
imposing the charge?
C. Qualitative Information
15. We also seek qualitative information that describes how the
prices for rights of way and wireless facilities siting and the target
timeframe for approval of infrastructure providers' applications are
set, and that describe
[[Page 28400]]
the process of receiving approval to access rights of way or site
wireless facilities, particularly for broadband. How are we to
distinguish and evaluate different policies and practices? To help
create a record of existing and best practices, we ask infrastructure
providers, localities, and other interested parties to submit examples
of model, typical, and problematic franchising or access agreements.
16. Certain qualitative information we seek is best provided by
states and localities. For instance, we request information on the
policy goals and other objectives underlying practices and charges
related to access to rights of way and approval of wireless facilities.
To what extent are local requirements designed to achieve public
interest goals, such as ensuring public safety, avoiding disruption of
traffic, or maintaining roadways? What role do other civic goals play
in guiding local rights of way and wireless governance decisions? For
example, how do localities weigh such issues as preventing the public
disruption and damage to roads that accompanies street cuts, or
satisfying aesthetic, environmental, or historic preservation concerns,
with goals of greater fixed and mobile broadband deployment and
adoption through timely processing of permits, nondiscrimination,
transparency, and reasonable charges?
17. Certain other information we seek may be best provided by
infrastructure providers. For example, we seek information about how
rights of way issues influence the deployment decisions of
infrastructure providers. In this regard, we request information on
both specific instances in which a provider chose not to build out
broadband facilities due to rights of way concerns and comprehensive
data or analysis that might demonstrate the extent to which rights of
way concerns are impeding broadband infrastructure investment and
broadband adoption. As providers prioritize capital investments, to
what extent do rights of way and wireless siting governance issues have
an effect? How do providers take into account any uncertainty with
regard to cost or timing? In areas where processes have been
standardized, we ask providers to provide evidence of how this has
affected their deployment decisions and quantify any benefits. Are
there situations in which localities believe that infrastructure
providers have unreasonably refused to build out broadband facilities
despite best efforts on the part of the locality to encourage
deployment through rights of way or wireless facility siting policies?
D. Extent to Which Ordinances or Statutes Have Been Updated To Reflect
Current Communications Technologies or Innovative Deployment Practices
18. We ask interested parties whether state statutes or local
ordinances have been updated to reflect current developments in the
communications industry or recent changes in communications
technologies that require access to public rights of way. Where such
updates have not occurred, do providers experience problems or issues
with application processing or delays? For example, do existing
ordinances or other requirements successfully address the placement of
small antennas on existing facilities in rights of way? In particular,
we seek comment on any challenges that may apply to the deployment of
microcells, picocells, femtocells, and Distributed Antenna Systems
(DAS). What, if anything, do states and localities require in order to
permit the attachment of microcells, picocells, femtocells, and DAS
antennas to existing infrastructure that is different from attaching
any other antenna to a given structure? Do any states or localities
allow all of the proposed DAS antennas within a DAS network to be
combined in a single permit application, and is this or would this be
helpful for DAS deployment? Are there any other ways in which
microcells, picocells, femtocells, and DAS antennas are treated
uniquely, and are there any ways in which states, localities, or
wireless service providers think they should be treated differently? To
what extent are these facilities treated as public utilities? To what
extent are they subject to local zoning processes? To what extent
should existing ordinances or statutes be revised to reflect changes in
the communications industry and technology?
19. We also seek comment on how different jurisdictions treat the
use of existing infrastructure for wireless services, both in and out
of rights of way. Is there disparate treatment between a pole
attachment, i.e., the attachment of a wireless antenna to an existing
public utility pole, and a collocation, where a wireless antenna is
attached to some other existing structure? Are different or additional
considerations required for some types of rights of way, such as those
used for transportation, as compared to other types? Are there
instances in which conflicting laws may apply to the attachment of a
wireless antenna to an existing structure? What is the overall effect
of these considerations on the ability and the likelihood that existing
infrastructure can be effectively used to deploy wireless services? Do
some regulations and policies encourage resource sharing, while others
discourage it? Do states and localities show any preference for
collocated antennas or for the placement of wireless facilities on
public property? Are there particular approaches that facilitate
wireless deployment, including DAS? Why do they work well?
E. Consistent or Discriminatory/Differential Treatment
20. How have ordinances addressed differences in rights of way
users and wireless facilities siting applicants, the different uses
they make of rights of way and sites, and the different equipment they
seek to deploy? Are differing rights of way or wireless facilities
siting practices or charges reasonable? Do they involve unreasonable or
discriminatory differential treatment of various types of rights of way
users or facilities siting applicants? What are appropriate methods to
determine whether a practice or charge is unreasonable or
discriminatory? For example, do publicly available fee schedules for
various categories of rights of way use tend to be nondiscriminatory?
Are zoning requirements for wireless facilities siting
nondiscriminatory? Are there other criteria that can and should be used
to determine whether charges or practices are discriminatory without
fact-intensive and burdensome administrative or court proceedings?
F. Presence or Absence of Uniformity Due to Inconsistent or Varying
Practices and Rates in Different Jurisdictions or Areas
21. In a given metropolitan area, the main city and various
surrounding towns, villages, and counties may have differing practices
and charges for rights of way usage and wireless facilities siting. To
what extent do these practices and charges differ within a particular
state? Does inconsistent treatment of infrastructure providers among
states and localities make the deployment of broadband more difficult
or time-consuming, or is inconsistency among states and/or localities
not problematic as long as infrastructure providers have a clear path
to follow within each jurisdiction? To what extent does the need to
file multiple applications cause problems for infrastructure providers,
regardless of the similarity or differences in the practices and
charges involved?
22. To what extent do rights of way governance and wireless
facilities siting requirements vary between different
[[Page 28401]]
Federal government agencies? Do different agencies require varying
types of information or do different agencies require similar
information to be presented in different formats? To what extent do any
differences among agencies make it more difficult to obtain permits and
build out broadband networks on Federally controlled properties? Have
there been efforts to increase uniformity? How successful have they
been?
G. Other Issues
23. Other Rights of Way or Wireless Facilities Siting Issues: We
ask interested persons to identify and describe any other rights of way
or wireless facilities siting issues that have an impact on broadband
deployment and adoption. We also ask interested parties to identify any
other practices or approaches that have been particularly beneficial to
facilitating broadband deployment. Do government rights of way owners
or wireless facilities siting authorities impose requirements that are
not directly relevant to intended use? For example, in some cases in
the past, localities owning rights of way have required that
infrastructure providers supply information of the type usually
required for a certificate of operating authority from the state. Is
this an ongoing requirement for applicants seeking rights of way or
siting permits? Are there other examples of such requirements? What are
the policy reasons for such requirements? Are there adjustments that
could be made to ensure that localities obtain necessary information
and address legitimate concerns?
24. Private Rights of Way and Tower Sites: We ask interested
persons to provide information on issues that arise in the context of
private rights of way or tower sites to the extent such information
might be helpful to the Commission in achieving a complete
understanding of potential public rights of way issues or issues
concerning tower siting on public lands.
25. General Scope of Concerns: We seek comment on whether specific
rights of way and wireless facilities siting concerns are widespread or
generally limited to particular Federal agencies, states, Tribes, and
localities. Are rights of way and wireless facilities siting concerns
generally less widespread in states that have adopted comprehensive
rights of way laws than in other states? Are rights of way and wireless
facilities siting concerns more common in certain types of areas, such
as cities and surrounding suburbs, and less common in rural areas? We
also ask interested persons to comment on the extent to which rights of
way and wireless facilities siting concerns are likely to increase or
decrease in the near future. For example in other contexts, it appears
that many long-term rights of way contracts will expire in the next few
years. Is this likely to cause a spike in rights of way disputes? Will
the need for new facilities to provide next generation wireless
services increase concerns regarding facilities siting?
26. Additional Data Gathering: We seek input on whether the
Commission should take any additional steps to gather information on
issues relevant to this proceeding, including workshops, surveys, and/
or mandatory data collections. Are there any existing sources of
relevant data the Commission could rely on for purposes of this
proceeding?
27. We seek input on the costs and benefits of each of these
approaches and whether any of these approaches should be pursued in
this proceeding. Are there any other approaches that would yield better
results with similar or smaller investments of time and effort?
III. Solutions
A. Prior Efforts To Resolve Concerns
28. We seek information on what interested parties have already
done to address rights of way and wireless facilities siting concerns.
Have the Federal government, states, localities, Tribes, and/or the
organizations representing them developed best practices for rights of
way and wireless facilities siting governance? We also seek comment on
best practices proposed by private sector entities. Are there existing
compendia of rights of way and wireless facilities siting best
practices? Aside from state statutes, have there been efforts to
develop consolidated rights of way application processes that cover
multiple jurisdictions and reduce or eliminate the need to file
multiple applications? Have other approaches to improving rights of way
and wireless facilities siting governance been attempted? We request
comment on the effects of previous efforts to address rights of way and
wireless facilities siting governance. Have state statutes governing
rights of way helped increase uniformity and reduce costs? We encourage
states that have adopted such legislation to describe the approach
adopted as well as the benefits and drawbacks. In addition, we ask
interested persons to submit information on instances in which
government entities and industry have worked together in a positive
manner to foster broadband deployment, and describe the factors or
circumstances that led to such constructive collaboration.
B. Options--Possible Actions To Address Current Areas of Concern
29. In this section, we ask interested persons to comment on a
number of actions the Commission might take to foster broadband
deployment by addressing rights of way and wireless facilities siting
concerns. For analytical purposes we have broken the options into two
groups: One focused primarily on possible voluntary programs and
educational activities coordinated or facilitated by the Commission,
and the other involving the exercise of Commission rulemaking or
adjudicatory authority. These sets of options are not mutually
exclusive. We ask interested parties to comment on the benefits and
costs of each of these potential actions, and to quantify those
benefits and costs to the extent possible. We also ask interested
parties to comment on the extent of the Commission's authority to take
the various actions discussed below, particularly the Commission's
authority to engage in rulemaking and/or adjudication. We also ask
whether there are other effective options to foster broadband
deployment through improvements in rights of way or wireless facilities
siting governance.
1. Voluntary Programs and Educational Activities
30. Commission Educational Efforts and Voluntary Activities: Should
the Commission address rights of way and wireless facilities siting
concerns through educational efforts and voluntary activities? We ask
interested parties to focus on the substantive scope of such
educational voluntary activities described below.
31. Best/Worst Practices: Should the Commission compile a set of
best practices for public rights of way and wireless facilities siting
policies that are consistent with facilitating broadband deployment? If
so, how should this be done? Should this effort focus on a limited set
of problematic issues, or should we instead try to develop a
comprehensive set of best practices?
32. Increased Uniformity: Closely related to the issue of best
practices, although emphasized somewhat differently, is the issue of
increased uniformity. Should the Commission work to increase uniformity
in rights of way and wireless facilities siting governance among
localities and/or within the Federal government? Could the Commission,
in partnership with affected stakeholders, develop a model application
processes or other procedures or practices, to lower costs
[[Page 28402]]
and streamline processes across multiple jurisdictions?
33. With respect to uniformity in practices and procedures within
the Federal government, what if any steps should the Commission take to
help streamline the process of siting facilities on Federal lands?
Should the Commission, for example, recommend convening or
participating in an inter-agency task force to inventory current
procedures and identify benchmarks for best practices?
34. Competitions and Awards: We also ask interested parties to
comment on whether the Commission should encourage best practices and
increased uniformity by initiating a ``race to the top'' type of
competition. The Commission could promote streamlined processes that
provide timely access to rights of way and wireless facilities siting
by recognizing individual localities for their outstanding efforts on
these issues. By doing so, the Commission would be encouraging more
localities and states to implement rights of way or wireless facilities
siting best practices and/or increase uniformity in these areas. What
kinds of incentives would encourage participation by localities and
states?
35. Commission Sponsored Mediation: Should the Commission establish
a process for voluntary mediation of rights of way and wireless
facilities siting disputes by selected state or local representatives
working in conjunction with industry? How should such a process be
structured, and how could participation be encouraged?
36. Improved Facilities Deployment Practices in Rights of Way:
Should the Commission work to raise awareness about facilities
deployment techniques that could reduce costs and speed deployment? For
example, should the Commission promote micro trenching and deployment
of Distributed Antenna System facilities on street light and traffic
light poles where appropriate? We invite comment on other innovative
rights of way or wireless facilities deployment practices that should
be considered in this regard.
37. Recommendations to Congress or the Administration: The National
Broadband Plan recommended that Congress consider allowing agencies to
set fees for access to rights of way for broadband services based on
direct cost recovery, especially in markets currently underserved or
unserved by broadband. The Plan also recommended that the Executive
Branch develop master contracts for all Federal property and buildings
covering the placement of wireless towers. Are there additional
specific actions that the Commission should recommend to the
Administration or to Congress that would remove roadblocks and
encourage further broadband build out on Federal properties? For
example, should the Commission recommend that the Executive Branch
formally permit wireless facility sites on Federal property, including
postal service property? Should the Commission make recommendations to
Congress or the Administration concerning rights of way or wireless
facilities siting concerns? For example, is legislation needed to
address certain concerns? Would Congressional action promote
uniformity? Should the Commission make recommendations to the
Administration? We invite suggestions for specific legislative language
recommended for Congress.
2. Rulemaking and Adjudication
38. In this section we discuss possible rulemaking and adjudication
options. We note that these options may work well as backstops to
voluntary action and Commission educational efforts or in combination
with such options.
39. Adopt Policy Guidelines: Should the Commission adopt policy
guidelines addressing rights of way or wireless facilities siting
issues? Such guidelines could set out the Commission's views on various
issues, such as application processing time frames, but would not be
enforceable as rules. We invite comment on the policy benefits and
drawbacks of this option.
40. Adopt Rules: Should the Commission adopt rules designed to
foster broadband deployment by addressing rights of way or wireless
facilities siting problems?
41. Substantive Scope of Policy Guidelines or Rules: What subjects
should be addressed by any policy guidelines or rules adopted by the
Commission? For example, should the Commission address the issues
described below? Are there other substantive issues in this proceeding
that the Commission should address through policy guidelines or rules?
42. Safe Harbors/Triggers: Should the Commission adopt policy
guidelines or rules establishing safe harbors for rights of way and
wireless facilities siting procedures, practices, and charges; or
triggers that would subject such procedures, practices, and charges to
heightened scrutiny by the Commission or a court in particular
circumstances? If so, what procedures, practices, and rates should be
included in this approach?
43. Billing Practices: Should the Commission adopt guidelines or
rules allowing or requiring infrastructure providers to impose separate
line item fees to recover rights of way or wireless facilities siting
charges directly from subscribers in the jurisdiction imposing such
charges in order to increase transparency and accountability and
minimize cross-subsidies?
44. Interpretation of Sections 253 and 332: Should the Commission
adopt guidelines or rules interpreting the terms of these statutory
provisions with respect to rights of way and wireless facilities siting
requirements? If so, what provisions of each section should the
Commission address and how should those provisions be interpreted?
45. Adjudication: Should the Commission address certain rights of
way problems through adjudication under section 253? Would this
approach be well suited to addressing problems that are not widespread,
but may represent significant obstacles to broadband deployment in a
particular locality or a small number of localities?
3. Other Proposals
46. We also invite interested parties to suggest other specific
actions the Commission could take to improve policies regarding public
rights of way and wireless facilities siting. In each case, we ask them
to describe the problem or subject matter addressed and its effect on
broadband deployment. We then ask them to explain their proposal. We
also ask interested persons to describe the benefits of such proposals
and to address potential drawbacks. In addition, we ask interested
persons to identify proposals that can be implemented relatively
quickly and those that would take longer to implement, along with
suggested timelines.
IV. Legal Authority
47. We believe the Commission has authority to engage in
educational activities to foster broadband deployment through improved
policies regarding public rights of way and wireless facilities siting
and to coordinate and participate in voluntary activities designed to
achieve this goal. We also believe the Commission has authority to
adopt policy guidelines and rules concerning these issues. We ask for
comment on these views and on whether the Commission has authority to
adjudicate rights of way cases under section 253. An analysis of these
legal issues is set forth below. In this regard, we emphasize that the
views described here do not represent final determinations on these
issues and that our ultimate legal conclusions will reflect a careful
consideration of the comments addressing these issues.
[[Page 28403]]
A. Background
48. We begin by reviewing the terms of the statutory provisions
most relevant to this proceeding--section 706 of the 1996
Telecommunications Act and sections 253 and 332(c)(7) of the
Communications Act. We also address a number of additional statutory
provisions in this section.
49. Section 706(a) provides that the Commission is to encourage the
deployment of advanced telecommunications capability to all Americans
(including, in particular, elementary and secondary schools and
classrooms) on a reasonable and timely basis. In granting the
Commission authority to fulfill this mandate, Congress specifically
directed the Commission to use various regulatory methods, including
those that remove barriers to infrastructure investment. In the 2010
Sixth Broadband Deployment Report, the Commission concluded that
broadband was not being deployed to all Americans in a reasonable and
timely manner. When the Commission makes such a negative determination,
section 706(b) requires that the agency take immediate action to
accelerate broadband deployment of by removing barriers to
infrastructure investment and promoting competition.
50. Section 253(a) bars state or local statutes, regulations, or
other legal requirements that prohibit or have the effect of
prohibiting the ability of any entity to provide any interstate or
intrastate telecommunications service. Section 253(b) contains a safe
harbor preserving competitively neutral state requirements necessary to
preserve and advance universal service, protect the public safety and
welfare, ensure the continued quality of telecommunications services,
and safeguard the rights of consumers. Section 253(c) also preserves
the authority of a State or local government to manage the public
rights-of-way or to require fair and reasonable compensation from
telecommunications providers, on a competitively neutral and
nondiscriminatory basis. Section 253(d) expressly requires the
Commission to preempt state or local government action in certain
situations.
51. Section 332(c)(7) of the Act applies to rights of way issues
concerning wireless services, It preserves state and local authority
over decisions regarding the placement, construction, and modification
of personal wireless service facilities subject to certain limitations.
However, under section 332(c)(7), the regulation of the placement,
construction, and modification of personal wireless service facilities
by any State or local government must not prohibit or have the effect
of prohibiting the provision of personal wireless services. The statute
also requires the State or local government to act on any request to
place, construct, or modify personal wireless service facilities within
a reasonable period of time.
B. Authority for Educational Activities and Voluntary Programs
52. We believe the Commission has ample authority to engage in
educational efforts to foster broadband deployment by encouraging
improvements in policies regarding public rights of way and wireless
facilities siting. We also think the Commission has ample authority to
participate in or facilitate voluntary endeavors to achieve this goal.
Section 706(a) specifically charges the Commission with encouraging the
deployment of broadband through the use of methods that remove barriers
to infrastructure investment. Section 1 of the Act also states that the
Commission was created to ensure rapid, efficient communication
services. In addition, section 4(i) gives the Commission broad
authority to take whatever actions are necessary to the execution of
its functions as long as they are not otherwise inconsistent with the
Act. Education and involvement in voluntary programs would advance the
goals of section 706 and section 1 and come within the broad
flexibility accorded the Commission under section 4(i). We believe that
such activities also further the goals of sections 253 and 332 by
reducing the likelihood of state or local actions that have the effect
of prohibiting the provision of a telecommunications service or
personal wireless service in violation of those sections. We seek
comment on these issues.
C. Authority for Rulemaking
53. We also believe that the Commission has authority to engage in
rulemaking to improve rights of way and wireless facilities siting
governance. Section 201(b) states that the Commission may prescribe
rules and regulations necessary to carry out the provisions of the Act.
Section 303(r) contains a similar grant of rulemaking authority, and
section 4(i) authorizes the Commission to make rules and regulations,
and issue orders necessary in the execution of its functions. Thus, we
believe the Commission has broad general rulemaking authority that
would allow it to issue rules interpreting sections 253 and 332. We
seek comment on this view. Could the Commission, for example, adopt
rules further defining when a state or local legal requirement
constitutes an effective barrier to the provision of a
telecommunications service under section 253(a) or defining what
constitutes fair and reasonable compensation under section 253(c)? We
also seek comment on our authority to adopt rules concerning matters in
this proceeding pursuant to section 706.
D. Adjudication of Rights of Way Cases Under Section 253
54. We also invite comment on whether the Commission has authority
to adjudicate rights of way disputes under section 253. The Commission
has not taken action to resolve this issue and courts have taken
differing approaches. Moreover, to the extent that the statutory
language is ambiguous, the Commission is not bound by those courts'
statutory interpretations.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 2011-11966 Filed 5-16-11; 8:45 am]
BILLING CODE 6712-01-P