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IIJA's 'Missed Opportunity'

House Communications Republicans, Democrats Clash on Broadband Permitting Proposals

House Communications Subcommittee ranking member Doris Matsui of California and other Democrats opposed many of the 32 bills and legislative drafts aimed at revamping connectivity permitting processes that the subpanel examined during a Wednesday hearing, arguing the current proposals are too broad and suggesting lawmakers gather more input before moving forward. Subcommittee Chairman Bob Latta of Ohio and other Republicans framed the measures as a necessary component of the federal government’s push to improve broadband connectivity that Congress failed to include in the Infrastructure Investment and Jobs Act.

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All 30 of the Republican-led permitting measures on the docket are in draft form, including the Latta-led Winning the International Race for Economic Leadership and Expanding Service to Support (Wireless) Leadership Act. That proposal, one of several that Commerce Committee Republicans first filed in 2020 (see 2006250068), would streamline wireless providers’ permitting processes by preserving state and local zoning authority but would enact “reasonable” limitations like shot clocks and cost-based fees. Democrats led both of the filed bills: the Broadband Incentives for Communities Act (HR-1241) from Rep. Lizzie Fletcher of Texas and Community Broadband Act (HR-2552) from Rep. Anna Eshoo of California.

Congress wrote the largest check for broadband deployment in our nation’s history” when it enacted IIJA in 2021, including NTIA's $42.5 billion broadband, equity, access and deployment (BEAD) program, said House Commerce Chair Cathy McMorris Rodgers, R-Wash. “This is a historical opportunity in our nation’s history to connect all Americans” and “we cannot allow permitting delays and unnecessary costs to mess it up.” She praised NTIA for using its BEAD notice of funding opportunity (see 2205130054) to ask states to identify steps to reduce deployment barriers, including streamlined permitting processes, but “encouraging and promoting these actions is not enough.”

IIJA “was a missed opportunity to enact meaningful permitting reform that would have broken down barriers to deployment and stretched federal funding,” Latta said. “Lengthy application reviews and excessive fees for deployment will only delay connectivity and increase costs, leaving behind those American families who lack reliable internet access.” Without “changes to the permitting process and meaningful oversight, all of this money set aside for broadband could be wasted,” he said: “We cannot let that happen."

The Republicans’ legislative proposals “offer a wide variety of needed improvements to existing permitting requirements at the federal, state and local level,” Rodgers said. They're collectively “reasonable permitting reforms” that will “guarantee” IIJA and other broadband funding goes “towards the deployment that Congress intended and communities need.” She highlighted her draft Wildfire Wireless Resiliency Act, which would exempt from National Environmental Policy Act and National Historical Preservation Act permitting reviews projects to replace or improve communications facilities damaged after a wildfire. Latta touted the Wireless Leadership Act and said he hopes “we can make these bills bipartisan as we move through our regular order.”

If there are real obstacles in deploying broadband universally, we want to know about them and find ways to address them,” said House Commerce ranking member Frank Pallone, D-N.J. Republicans “have skipped right past an examination of the issues to potential solutions, which is unfortunate and defies logic.” House Communications should “first take the time to identify where the problems are before examining solutions,” he said. Pallone criticized the panel’s GOP majority for inviting “four witnesses to cover these bills, and yet” Rodgers “rejected our request for a second Democratic witness for the panel. I have deep concerns about that imbalance and the precedent it sets, especially” given the lack of “an informational hearing.”

Republicans’ “actions are inconsistent with their calls for bipartisan collaboration and unfortunately may make it harder to work together on these bills moving forward,” Pallone said. Matsui delivered more muted criticism of the Republicans, alluding to “concerns about process and representation on the witness panel,” but added it’s “my hope that moving forward, we can get back to a more balanced approach that encourages bipartisan collaboration on a consequential issue.” She believes it’s the BEAD funding, “more than any bill on today’s agenda, that will be responsible for closing the digital divide.”

Some of the Republican proposals before us today are supposed solutions to problems that simply do not exist,” Pallone said. He conversely praised the Democratic-led HR-1241 and HR-2552. HR-1241 would create a grant program at NTIA to help local governments and Indian tribes improve the efficiency of their broadband permitting reviews. HR-2552 would preempt state laws that prohibit municipal broadband networks. Many of the GOP drafts “could undermine” collaboration between the federal government and state and local entities on broadband projects, Matsui said.

Former FCC Commissioner Mike O’Rielly and executives from three communications sector groups broadly supported the GOP-led drafts. O’Rielly and NTCA Executive Vice President Michael Romano praised the Barriers and Regulatory Obstacles Avoids Deployment of Broadband Access and Needs Deregulatory (Broadband) Leadership Act, which would maintain state and local zoning authority over ISPs but would institute “reasonable” limitations, including shot clocks and cost-based fees, to their permitting processes.

The Broadband Expansion and Deployment Fee Equity and Efficiency (BEAD Fees) Act and Reducing Barriers for Broadband on Federal Lands Act are among several proposals that “would address concerns experienced by NTCA members,” Romano said. The BEAD Fees Act would require states accepting BEAD money to ensure that application fees charged by state and local governments are transparent, competitively neutral and cost based. The Reducing Barriers for Broadband on Federal Lands Act would exempt broadband projects on previously disturbed federal lands from NEPA and NHPA reviews.

The Wireless Infrastructure Association “supports efforts to codify the FCC’s interpretive decisions” and bills that “aim to do so” amid the 9th U.S. Circuit Court of Appeals’ current review of the commission’s 2020 declaratory ruling on wireless infrastructure (see 2303100069) and other legal challenges, said Senior Vice President-Government Affairs Mike Saperstein. He cited the Wireless Leadership Act and Broadband Leadership Act, “which would make permanent reforms to shot clocks and prevent unreasonable fees among other changes similar to previous FCC reforms.”

Louis Finkel, National Rural Electric Cooperative Association senior vice president-government relations, endorsed the Reducing Barriers for Broadband on Federal Lands, Facilitating the Deployment of Infrastructure with Greater Internet Transactions And Legacy Applications, and Connecting Communities Post Disaster acts but sharply criticized the Fair Access to Internet Ready Poles Act. The Fair Poles Act, which would remove the municipal and cooperative exception to pole attachment regulation from entities that received federal broadband support, “would dissuade electric cooperatives from participating in recently created federal programs aimed at supporting broadband infrastructure deployment in high-cost rural areas,” Finkel said.

Electronic Frontier Foundation Senior Legislative Counsel Ernesto Falcon believes some of the proposals “address parts of the puzzle to ensuring the successful implementation of BEAD” and specifically praised HR-1241, HR-2552 and the Standard Fees to Expedite Evaluation and Streamlining Act. The Standard Fees Act would establish a common fee for processing applications to deploy communications facilities on federal property.

HR-1241 “is likely a win-win for both industry and communities motivated to facilitate their entry while protecting the public interest at the same time,” Falcon said. HR-2552 “is probably one of the most important bills” on the docket since “the private sector has limitations in how much risk they can tolerate and how long they can wait on a return on investment.” The Standard Fees Act "heads in the right direction ... by requiring consistency across all federal agencies so that applicants planning network build that must cross public land can account for their costs with confidence," he said.