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EPA Updates State Regulators on Telecom Lead Probe

LA QUINTA, Calif. -- The EPA took “very seriously” telecom lead findings reported by the Wall Street Journal this summer (see 2307210004), EPA Senior Counselor to the Administrator Grant Cope said Monday. The government’s investigation continues, he told the NARUC Telecom Committee at the association’s meeting here. Also, FCC Chairwoman Jessica Rosenworcel’s former chief of staff Travis Litman said the FCC will have to “run, not walk” to complete net neutrality and other possibly divisive items before the election.

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The Telecom Committee considered zero resolutions at the La Quinta meeting. “With the new additions at the FCC, everybody’s kind of on hold to see what the FCC’s lead is on some of these issues like net neutrality,” Chair Tim Schram told us afterward. The Republican commissioner from Nebraska predicted a net neutrality resolution would be proposed for the February meeting in Washington, D.C. The NARUC panel also is closely watching what Congress does on funding for the affordable connectivity program, said Schram.

The EPA investigation began with a focus on areas in New Jersey, Pennsylvania and Louisiana that were reported to have high levels of lead and were near schools and playgrounds, said Cope. Validated lab results released so far showed lead levels above the EPA’s soil screen level of 400 parts per million, he said. “Our current assessment of what that means is that the levels of risk do not require immediate action.” That’s because there’s a lot of grass covering the sampled soil and many of the locations aren’t where children gather to play in the dirt, said Cope.

A cross-agency technical work group is finalizing recommendations, said Cope. EPA has made no decisions on whether equipment should be removed or soil must be cleaned, said Cope. “When we have recommendations and come out with any potential next steps, we’ll make that public.” As part of the investigation, EPA required AT&T and Verizon to provide information including inspection results and sampling data, Cope said. EPA is coordinating with DOJ and other federal agencies including the FCC and kept communication open with the two carriers and telecom associations, he said. It reached out to affected states but hasn’t worked much with state regulators, he said.

With a 2-2 FCC political split for much of President Joe Biden’s first term, the federal agency had been focused on issues that could get unanimous, bipartisan support, said Litman, now a lawyer with Wilkinson Barker. Now with a 3-2 Democratic majority, "we're going to see a bit of a different FCC," he said. Having only 12 months before the election adds urgency, he said. Litman expects key FCC priorities to be net neutrality, broadband authority, digital discrimination and the homework gap, he said.

Rulemakings take time due to the Administrative Procedure Act, cautioned Litman. It took 10 months to fashion the open internet order under former Chairman Tom Wheeler and seven months to reverse it under ex-Chairman Ajit Pai, the lawyer said. The FCC also must consider the Congressional Review Act, which would allow a 2025 Congress to nullify agency actions from 2024. Unforeseen events could always change the commission’s agenda, as the COVID-19 pandemic did in 2020, he said.

People shouldn’t hold their collective breath waiting for Congress to pass a net neutrality law, which would stop policy reversals every time FCC political control changes, said Litman: Less ferocity around the debate this time around compared to previous years may be a sign that people are "getting used to the regulatory ping pong."