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correct size blogLast week, the Federal Communication Commission’s (“FCC”), Broadband Deployment Advisory Committee (“BDAC”) held two meetings where many of the BDAC’s recommendations were formally adopted.  (To see the BDAC’s full report please click here.) For those who are unaware, the BDAC was recently created by the FCC and tasked with examining current barriers to broadband deployment.  The BDAC was to then provide the FCC with recommendations on how to best overcome these barriers, with the ultimate goal being to expand affordable and reliable access to broadband services.

As predicted, many of these recommendations are grounded in the misguided notion that state and local governments present the primary barrier to broadband deployment. Based on that erroneous assumption, the BDAC recommends federal preemption of local control.  An underlying question, of course, is whether or not the FCC has been granted legal authority to preempt local control in regards to broadband deployment.  The BDAC, however, did not address the threshold issue of FCC authority but instead pressed on, continuing to operate under the assumption of authority.  This error could ultimately prove the BDAC’s work to be fruitless, and this would only serve to delay progress towards the shared goal of bridging the digital divide.

Why this essential threshold issue was ignored is likely the same reason why preemption was an overarching theme of nearly every recommendation – membership of the BDAC is made up, nearly exclusively, of broadband service providers and telecommunications representatives.

From its inception, the BDAC lacked sufficient local government representation.  Instead, the FCC stacked the BDAC’s membership with industry insiders, giving very little voice to the concerns of local government.  Lack of input from all effected stakeholders caused the goal of the BDAC to shift.  Rather than being consensus-driven solutions, the recommendations that have come out of the BDAC can more aptly be described as an industry wish list.

Reacting to the steamrolling of local concerns, San Jose, CA. Mayor, Sam Liccardo, one of the few municipal representatives on the BDAC, submitted a “Minority Report.”  The Minority Report examines the threshold question of the FCC authority to preempt local control, as well as its authority to set rates for use of local rights of way.  The Minority Report also exams solutions to bridging the digital divide.  Solutions not premised on the idea that state and local control are the only barriers to deployment, instead, taking a more holistic approach and examining the actions of all stakeholders.

We hope that the FCC takes the Minority Report into consideration when driving policy and rulemaking decisions.  Bridging the digital divide is an important goal for all involved, as it means a better quality of life for all residents.  Any proposed solutions, however, must be fully examined from an unbiased viewpoint.  Something the BDAC’s report and recommendations fail to do.

Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x.137.

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