ACCG 2018 Annual Meeting Rural Broadband and Wireless Industry Preemption of Local Government Right-of-Way

Transcription

1 ACCG 2018 Annual Meeting Rural Broadband and Wireless Industry Preemption of Local Government Right-of-Way 1

2 ACCG Advancing Georgia s Counties 2

3 Rural Broadband Lots of Action: HB 887, Rep. Jay Powell, omnibus, initially included Communications Service Tax; SB 232, Sen. Gooch, EMC and Rural Telephone Coops; SB 402, Sen. Gooch, omnibus; SB 426, Sen. Gooch, House changed to include EMC and Rural Telephone Coops; Bills changed extensively throughout session; but Only SB 402 passed both Senate and House. 3

4 SB 402 Rural Broadband Achieving Connectivity Everywhere (ACE) Act: Joint effort between Sen. Steve Gooch and Rep. Jay Powell (HB 887); GDOT to lease ROW for deployment of communications technologies; Not on Interstates where Feds prohibit, Profits may go toward state broadband grants, Broadband: at least 25 megabits per second downstream, 3 mbs upstream; Comp Plans required local promotion; Department of Economic Development (DED) to promote deployment statewide and designate Georgia Broadband Ready Community Sites ; 4

5 SB 402 Rural Broadband OneGeorgia Authority authorized to fund infrastructure, improve property; Georgia Technology Authority to create and coordinate Statewide Deployment Plan; All state agencies must cooperate, Department of Community Affairs (DCA) to create map of unserved areas ; Defined as a census block, broadband available to less than 20% of locations, Map by Jan. 1, 2019, Local governments must assist with this effort. 5

6 SB 402 Rural Broadband Broadband Ready Community Program: Part of ACCG s 2018 legislative priorities, Voluntary for Counties and Cities, DCA to administer, Locals must first have comp plan element, Single point of contact for all things broadband, Timely processing (applications complete, expedited processing), Reasonable and cost-based permitting fees, Exceeding $100 must be justified, No permitting moratoriums, 6

7 SB 402 Rural Broadband Broadband Ready Community: Locals cannot discriminate among providers, public or private, Must authorize access to right of way, Be efficient in other permitting areas, Follow other rules promulgated by DCA, DCA will develop a model ordinance, DCA can decertify communities failing to comply, and Communities receive priority for OneGeorgia funding. 7

8 SB 402 Rural Broadband Georgia Broadband Ready Community Site Designation Program: Developed by DCA, Designates/promotes facilities with at least 1 gigabit of service, downstream, accessible by business, education, healthcare, government and other public purposes, and DED to promote sites as local community assets. 8

9 SB 402 Rural Broadband Georgia Broadband Deployment Initiative DCA to create by July 1, 2019, Reverse auction program, modeled after New York, Available to private or public providers requesting least amount of money, Targets unserved areas, 5 rounds of grants, one a year for 5 years, Priority given for higher speeds; enhance business, education, healthcare, public safety or government efforts, Grantees cannot charge more in these areas, Must serve 90% of population in area, Priority given to unserved areas in Broadband Ready Communities, and Other factors. 9

10 SB 402 Rural Broadband What SB 402 Does Not Include: Funding Authority for EMCs and Rural Telephone Coops to provide broadband. NOW TO RIGHT-OF-WAY REEMPTION EFFORTS. 10

11 What is 5G? It s NOT rural broadband; Aimed at metro/urban areas for 5G roll out; Mobile data use more than tripled nationwide between 2014 and G networks expect to offer Internet speeds 10-to-100 times faster than 4G. 5G expected to create $250 billion in annual service revenue by Requires many more antennas (small cells), spaced about 500 apart, Per Carrier. 11

12 Why Preemption Sought by Wireless Industry? Seeking near-unfettered access to local government right of way (ROW). Many cities, Columbia, Cobb and Gwinnett counties have adopted ordinances. About 25 states have passed wireless industry s ROW preemption legislation. FCC also seeking to adopt federal preemption. Why pay rent on private property when you can get a public gratuity? 12

13 Why Preemption Sought by Wireless Industry? Cities/Counties are money grabbing; Cities/Counties impeding technology advancement; Cities/Counties are obstructionists, not approving permits; Can t deal w 159 county and 550+ city regulations; Cities/Counties don t understand public s interest; Claim costs is preventing investment in rural broadband; We ll just move our capital to other states that have passed the law; These small cells aren t noticeable; Trust us that we ll be reasonable in deployment, work with the locals; We want to be treated like other utilities (but don t want to pay franchise fees or be regulated by PSC) 13

14 What are Small Cells? 14

15 What are Small Cells? Which one is correct? 15

16 ROW Preemption Background Wireless industry started w dream Christmas list; Don t get caught up w bill numbers; multi-pronged assault, same language; All negotiations directly with wireless corporate attorneys; they decided what concessions to make, and what language to include; No neutral third party; sponsors towed the industry line; Most concessions made wrought with legal loopholes; Language following is after a year of talks; ACCG could accept statewide standards, but not this; ACCG worked in good faith, all along; and The heavy hand of over 35 well-apt industry lobbyists. 16

17 ROW Preemption Language Guarantees nearly unfettered access along, across, upon and under city and county ROW to construct, install, maintain, operate and replace: poles (50' high), antennas (multiple, up to 6 cubic feet in volume and 10 higher than poles), equipment boxes (up to 25 cubic feet in volume), up to 4 cabinets (of undefined size) and other infrastructure, Once installed, right to expand equipment, exponentially, so long as it does not substantially change the size Governs entire field of the placement and regulation of wireless facilities and poles within local ROW. All existing ordinances and agreements are nullified. 17

18 ROW Preemption Language Locals must be competitively neutral and nondiscriminatory. 30 days to determine if applications are complete. 75 days to act on application, or deemed approved. All applications must be approved unless they: materially interfere with traffic control equipment or sight lines; fail to comply with ADA or state/federal pedestrian access standards; fail to comply with reasonable and nondiscriminatory spacing requirements of general application concerning the location of ground mounted equipment or new utility poles ; such spacing requirements shall not prevent a provider from serving any location; fail to comply with applicable codes; or fail to meet the requirements in this law. 18

19 ROW Preemption Language Can file consolidated application for collocation of up to 15 facilities. New poles constitute a single permit. May file up to 8 applications at once (8x15=120). No local permit moratoriums. Permits can be terminated at any point by the provider. Permits good for 10 years and shall be renewed automatically, indefinitely. 19

20 ROW Preemption Language Locals may only charge the below permitting fees: $100 each for up to five small wireless facilities addressed in application, $50 for each additional small wireless facility, and only if costs are not already recovered by existing fees, rates, or taxes payed by a provider, $200 for up to 5 small wireless facilities on city/county-owned pole, $100 for each additional facility, No fees can cover any expenses by third-party consultants, No fees allowed if costs are not already recovered by existing fees, rates, or taxes payed by a provider, and Annual fee of $20 per year per small wireless facility in the ROW. 20

21 ROW Preemption Language Collocation required first? Provider has to certify that, after diligent investigation, it cannot meet its service objectives by collocating on an existing structure at reasonable terms, conditions and costs. Shot Clocks for their removal/relocation of equipment; Providers shall relocate or remove their equipment if locals find it unreasonably interfering with road/row widening, repair, etc. within the time reasonably provided for the relocation of other similarly situated structures. Safeguarding Historic Districts and Decorative Poles? Locals can require reasonable and technologically neutral design or concealment measures in historic districts, but measures cannot prohibit a provider s technology. Locals may adopt guidelines for reasonable stealth/concealment criteria for locating on decorative poles (or installing new poles), but only downtown and residential areas. 21

22 ROW Preemption Language Undergrounding? Only if all other cable/utility companies required to do so. Public Safety and Damage to ROW: If locals believe provider activity creates an imminent risk to public safety, the provider must reasonably address it within 24 hours or locals can take reasonable measures to do so, then charge the provider the reasonable documented cost of such actions. Providers must repair all damage to ROW they cause and return ROW to its functional equivalency. If not done so within 60 days (following written notice), locals may fix and then charge provider. What the heck does all this mean? 22

23 ROW Preemption Language Speculative and Abandoned Equipment? Locals may require that equipment be operational within nine months after a permit is issued unless power has not been provided or lack of communications transport facilities to the pole. After use, if equipment hasn t been operational for 12 months, locals can require its removal following 90 days after written notice is provided. Local Government Poles/Structures? Locals must allow collocation access to their poles: cannot enter into exclusive arrangements with any provider; can only charge $40 annually for the privilege; must provide an estimate of necessary make-ready cost within 60 days of an application receipt, then complete make-ready work, to include the possible replacement of the pole, within 60 days of the provider s acceptance of the estimate, to later bill the provider; and must allow access to their poles and structures outside the ROW to the same extent 23 others have access.

24 Why ROW Preemption not Ready for Prime Time ACCG has never been, nor is now okay with this bill. Conveniently, the State has exempted itself. EMC poles should not be exempt either; collocation is key. ACCG has attempted to work with wireless providers, legislators and other stakeholders. This is not a rural broadband bill. State legislators to now take responsibility. 24

25 Why ROW Preemption not Ready for Prime Time There will be a proliferation of new poles in the ROW. Shot clocks should apply all around. While collocation is preferred, it too comes with adjoining equipment. Abandoned wireless facilities could become common as technology changes. Taxpayers will be subsidizing the permitting process. Counties and cities are not the enemy the industry has made them out to be. Why this special carve out for the wireless industry? What is precedent for others franchise fees? What is precedent for everyone moving equipment to ROW? 25

26 ROW Preemption Bills History SB 232 Changed in Senate Committee to EMC bill HB 533 Never advanced SB 426 Unadulterated Industry Language Feb. 28, Passes Senate by vote of 52-2 March 29, House Rules Committee strips language and puts in EMC bill March 29, Senate Never takes back up, Sine Die HB 887 Started as Rural Broadband Bill Feb 28, Passes House March 19, Senate puts in ROW Preemption language (Same as SB 426) March 27, Senate passes (much narrower margin) March 29, House never takes up the bill for a vote FAIL -March 29, Sine Die House is to be Commended! 26

27 ACCG Guiding Principle ACCG supports counties decisions to permit these facilities. Counties can help draft what they feel is appropriate for their community. Counties are already free to grant ROW free-for-all if they would like, or feel it would facilitate broadband expansion. Once size doesn t fit all. This creates many concerns in metro, congested ROW. ACCG could go neutral, but not on this broad of a preemption. 27

28 ROW Preemption: Study Committees HR 1698 House Rural Development Council to study the Use of County ROW for Telecommunications Deployment: and Look at how to streamline and make equitable use of state and local government ROW; Expedite deployment of emerging communications technologies; and Retain local control of and fair compensation for ROW. SR 1019 Senate Study Committee ROW for Telecommunications Deployment: Study state/local laws on the use of ROW to deploy advanced broadband; Look at whether this technology should be treated differently than current technologies (in terms of regulation, taxation, etc.); and Should state law be changed to achieve modernization, fairness and technology neutrality. 28

29 2018 Session in Photos 29

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31 2018 Session in Photos 31

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35 The End Todd Edwards Deputy Legislative Director Association County Commissioners of Georgia