FCC pursues anti-consumer agenda that preempts municipal authority

From the Beacon, October 2018

The Federal Communications Commission is the federal government body that deliberates on issues that are fundamental to our information-age economy. Because their domain is so technologically and legally complex – covering all interstate and international communications by radio, television, wire, satellite and cable – the agency rarely makes it to the front page, because the issues are so difficult to explain in simple, media-friendly terms. Unfortunately, this means that it is particularly hard to raise public awareness if the FCC embarks on an anti-consumer policy.

The FCC chair is selected by the president, and a new chair was named in January 2017, shifting the balance on the commission. This has moved the agency into a deregulation and preemption mode, adopting overall policies that will benefit the telecom industry, but marginalize consumers and local and state regulators. This means that cities and towns in Massachusetts and throughout the country face the prospect that the FCC will make it more difficult for municipalities to protect consumers and residents.

The FCC splashed into public awareness late last year when it voted (by a partisan 3-2 margin) to repeal “net neutrality.” This is the ruling that will allow internet service providers to begin charging a premium for high-speed access to certain high-demand and popular products, such as video streaming. The telecom industry (e.g., AT&T and Comcast) applauded the ruling, but the internet content providers and all consumer groups were staunchly opposed (Netflix, Microsoft and Reddit, for example). Public opinion surveys show that more than 80 percent of the public strongly oppose the FCC decision. But the agency disregarded all of this opposition and plowed ahead anyway.

The agency is at it again, advancing two new orders intended to partially preempt municipal authority. The first is the FCC’s Small Cell regulation, which would place time limits on the review of small cell deployment permits – making it nearly impossible to deny applications – and limit the fees that communities can charge for use of public rights of way to below-market levels.

This order would make it extremely difficult for cities and towns to regulate small cell deployment to ensure that the aesthetic and safety needs of neighborhoods are met. Further, the order would grant a windfall to telecom companies, by allowing them access to public ways without adequate compensation.

The second pending order is a new cable franchise regulation that would significantly reduce the franchise fees that communities currently receive when they negotiate and award cable franchise agreements with Comcast, Verizon and other providers. This new order would allow these cable firms to deduct “in-kind” contributions from the 5 percent cable franchise fee. Currently, these in-kind contributions, such as technology for local schools, the value of PEG channels, or public access initiatives, are in addition to the fee. By netting these public benefits out of the franchise fee, the overall value of the franchise agreements would drop dramatically, and the public would be short-changed. This would be another windfall for industry, coming at the expense of local taxpayers, residents and consumers.

The MMA has already submitted strong testimony to the FCC in opposition to the draft Small Cell order, and will be delivering equally strong comments against the cable franchise fee order when the comment period opens. In addition, MMA is working with the National League of Cities, the National Association of Telecommunications Officers and Advisors, and state municipal associations across the country.
We appreciate the strong support of the Massachusetts congressional delegation. It is highly unlikely, however, that the current leadership in Congress would allow legislation to unwind these FCC orders. In fact, the only pending legislation is a bill sponsored by Sen. John Thune of South Dakota, which promotes the FCC’s Small Cell policies. Fortunately, that bill is stalled.

Unfortunately, even with a national network advocating for municipal and consumer interests, this is an uphill fight. That’s because a majority of FCC commissioners are taking a highly ideological approach to their policy-making, with the clear intention of preventing communities and states from implementing meaningful local regulation. Because the issues are complex, press coverage has been marginal at best, and the commission does not feel pressured to be more transparent or consumer-friendly.

Local governments have an important responsibility to protect the health, safety and welfare of residents, and the FCC’s preemption measures will compromise that traditional authority and work against the public interest.

Cities and towns across the Commonwealth have worked with private businesses to build the best broadband and cable infrastructure possible for their residents, and have demonstrated restraint and reasonableness throughout this process. The FCC is ignoring the positive record here in Massachusetts. The MMA will continue to oppose any effort to restrict local authority, stymie local innovation, or limit the obligations that telecom providers have to our communities – even if the battle is uphill and the outcome is preordained by today’s FCC.