COMRS. STRESS BALANCE BETWEEN LOCAL GOVT. RIGHTS, BROADBAND ROLLOUT
FCC Chmn. Powell and other commissioners stressed importance of striking balance between interests of local govts. to manage rights-of-way and receive fair compensation and need to promote broadband deployment and other advanced telecom services, as agency opened forum in Washington Wed. to tackle ROW issues and debate scope of Commission’s authority under Sec. 253. ROW challenges have been “with us forever,” and have accompanied every new generation of technological progress, Powell said. State and local govts. historically have had primary role in establishment of policy over ROW that must be “understood and respected” by all, he said, and they're vital part of any solution. Congress had developed blueprint for new infrastructure and new technologies, Powell said, and demanded that agency advance that objective: “These are challenges that we must balance.”
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Access to ROW is critical to promote deployment of broadband and facilities-based competition, Comr. Abernathy said. But at same time local govts. have rights to manage ROW and receive fair compensation for their use. What’s needed is balance between needs of service providers and local govts., she said. With various stakeholders exploring ways to reach common ground at forum, assessment could be made in case of differences that can’t be bridged whether FCC intervention is necessary, she said. One of issues was what constituted fair and reasonable compensation for ROW and whether it should be cost-based or percentage of revenue of providers, she said. Comr. Copps said ROW issue was “knotty problem but it is not an unsolvable problem.” He said he believed broadband was critical to rebound of telecom sector, so any impediment to rapid deployment of broadband services or networks needed to be “addressed, tackled and resolved.”
One such problem cited by providers, Copps said, was ROW access. Complaints include unreasonable fees, unnecessary delays and even discriminatory treatment by local govts., he said: “And there have been some horror stories out there.” On other side, local govts. which have important role in managing ROW and public land, are seeking to minimize disruption to public from torn-up streets and want appropriate compensation for access. Majority of local govts. are trying to balance obligation toward ROW management with their desire to bring advanced services to their communities, he said. And there are some commonalities among stakeholders, he said: “I think we all agree that broadband is important.” Some local jurisdictions are building their broadband systems where private sector was reluctant to go in. Comr. Martin, saying availability of ROW was critical to economy, especially at time of downturn, called ROW “invaluable resource” that created pathway for national telecom network and infrastructure. He said it was important that govt. at all levels exercise restraint from imposing additional burdens on broadband. Task of identifying and eliminating potential burdens to broadband deployment is critical, Martin said.
At separate panel on FCC’s jurisdiction, Qwest Corp. Counsel Christopher Melcher said agency under Sec. 253 had authority to limit abusive and over-reaching local ROW requirements and should exercise it appropriately. There are several ways Commission could do it, including formal rulemaking, he said, but less-definitive and less time- consuming approach would be to provide policy statement. Agency should issue clear statement that eliminated need to litigate issue repeatedly in different courts and bring “much-needed certainty and predictability to the industry,” Melcher said. He said everyone agreed that local govts. played critical role in ROW management but not in management of telecom companies. Sec. 253 preserves jurisdiction over ROW, but with federal oversight, Melcher contended. Pamela Berry of Berry & Elsner said FCC did issue Sec. 253 guidelines in 1998 that are widely available. There’s no need for any further guidelines, she said. It was tempting in time of financial crisis in telecom industry “to point fingers and attempt to lay blame,” Berry said, but federal solution isn’t “mandated by the current financial crisis in the industry.”