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FCC Comments

Comments on Public Right-Of-Way Practices and Broadband Deployment

WC Docket No. 11-59
September 30, 2011 |

In response to the Commission’s NOI and in consideration of initial comments filed, Commenters urge the Commission to refrain from imposing any sweeping, standardized federal regulations on states and municipalities that would undermine the ability of local governments to determine the appropriate right-of-way practices to promote community interests and well-being.

Right-of-way practices are designed to address a myriad of local interests – including but not limited to ensuring sustainable use of property in the public trust and protecting public safety and general welfare. The most appropriate practices for addressing those interests will vary by locality; thus a “one-size-fits-all” regulatory framework administered by the Commission would be wholly inadequate and ill-equipped to adapt as local interests and needs evolve.

Moreover, right-of-way practices are in no way more of a deterrent to the deployment of infrastructure than the kinds of obstacles that every real estate developer must navigate. Whatever tangential benefit their removal could achieve would be dwarfed by the costs to localities of a “one-size-fits-all” framework that will not only fail to serve local interests but will also be a significant waste of resources spent duplicating existing institutional knowledge and experience at the local level with unnecessary federal oversight. Indeed, any convenience achieved by summarily dismissing local permitting and zoning regulations could not outweigh the local interests those regulations protect.

In any event, the record is devoid of any evidence of the type of systemic problem that could justify or necessitate the intervention of Federal authorities to strip local governments of their ability to manage their public rights-of-way in the interests of the communities they were elected to serve. Neither the record nor the Commission itself has demonstrated with any rigorous empirical analysis that right-of-way practices significantly impact broadband deployment. Initial commenters writing in favor of federal regulation largely fail to demonstrate that local right-of-way practices on a systemic basis have historically discouraged deployment or would discourage future deployment. Rather, the empirical analysis presented by the NationalLeague of Cities, the National Association of Counties, the United States Conference of Mayors, et al (“National Associations”) supports the converse conclusion – that local right-of-way practices have not created unreasonable barriers to broadband deployment or adoption.

Thus, rather than treating local governments as a barrier to be overcome, both the Commission and the many broadband providers who consistently have lobbied to marginalize local government’s role should view them as a vital lynchpin in achieving the Commission’s broadband deployment and adoption goals as provided in the National Broadband Plan. Thus, we agree with the National Associations’ assertion that the Commission’s more appropriate and useful role in this matter should be one of a facilitator – activating the Intergovernmental Advisory Committee (“IAC”) it previously authorized, and bringing all stakeholders to the table to identify areas of potential cooperation on this matter.

Click here to download a PDF copy of the full comments.

"Rather than treating local governments as a barrier to be overcome, both the Commission and the many broadband providers who consistently have lobbied to marginalize local government’s role should view them as a vital lynchpin in achieving the Commission’s broadband deployment and adoption goals as provided in the National Broadband Plan."

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