During the
August Open Meeting of the Federal Communications Commission (FCC), Commissioners approved a report and order and declaratory ruling dealing with one-touch make-ready requirements and state and local moratoria.
This item sets out an explicitly preemptive posture for the FCC on state and local regulations. With regards to moratoria, the
declaratory order enacts an immediate blanket prohibition on all state and local government moratoria for telecommunications services and facilities deployment, and expands the definition of those covered moratoria. Under this change, providers who believe that a jurisdiction has an express or de facto moratoria in violation of the order can petition the FCC's Wireline Competition Bureau and Wireless Telecommunications Bureaus, which have been directed to expedite these kinds of challenges.
Commissioner Michael O'Rielly, in particular, made
clear in his comments the intent to take more preemptive actions against local governments. "Every ounce of Congressional authority provided to the Commission must be used as a counterforce against moratoriums, which is just another word for "mindless delay" or "extortion attempts to generate some local officials' wish list"," said O'Rielly. "And, the record is replete with examples of such out-of-bound practices, such as digital inclusion funds, that unnecessarily create political slush funds and raise the cost of service for consumers." This last remark was likely a shot at the City of San Jose, which recently
struck a deal with three carriers to build the country's largest small cell deployment and establish a municipal digital inclusion fund to close the digital divide in low-income neighborhoods.
NLC released the following statement in response to the vote:
"The National League of Cities (NLC) is disappointed that the Commission chose to further preempt local authority with today's Report and Order.
NLC strongly disagrees with Commissioner Michael O'Rielly's characterizations of local governments and their associations as obstacles to broadband deployment. In fact, local governments share the Commission's goal of closing the digital divide. It is local innovative approaches, from investing in public broadband infrastructure to working with providers to address digital inequity in communities, that will allow for cutting-edge technology to be implemented equitably across the country. Cities must retain the flexibility to protect their residents' interests and ensure appropriate management of public property.
In our view, Commissioner Jessica Rosenworcel's assessment that this decision on moratoria will lead to more, not less, litigation is accurate. Unelected officials in Washington do not know better than the mayors and councilmembers in cities and towns about how best to protect local needs.
NLC remains concerned by the expansive approach the Commission has taken to its interpretation of the law regarding preemption, and we believe that the Commission is overreaching its statutory authority."