By Ron Thaniel
March 22, 2010

With the release of the Federal Communications Commission’s (FCC) National Broadband Plan on March 16, two weeks of intense lobbying to preserve local rights-of-way authority and compensation came to a close with a victory for cities. The Plan, mandated by last year’s economic stimulus package, did not include recommendations advocated by the communications industry that would have limited local government rights-of-way authority or would have undermined local budgets by imposing a less than fair market value as the standard for fair and reasonable rights-of-way compensation.

This would have occurred if the FCC established, or recommended establishing, a rule or an interpretation that would have prevented state and local governments from obtaining fair market value for use of rights-of-way by communications companies, have made the current gross revenue-based, per-line or per foot-based, or other market-based rights-of-way fees that many local governments charge unlawful, or would required local rights-of-way fees to be cost-based or subject to any FCC-imposed cost model.

In letters, phone calls, and meetings with the FCC, the Obama Administration, and Congress, the local government coalition, which included The U.S. Conference of Mayors, the National League of Cities, National Association of Counties, National Association of Telecommunications Officers and Advisors, Government Finance Officers Association, International City/County Management Association, and International Municipal Lawyers Association, argued that Section 253 to the Communications Act in the Telecommunications Act of 1996 made it very clear that the FCC did not have a role in defining what was "fair and reasonable" compensation for use of local rights-of-way, and instead left the determination of compensation and management of public property to the states and localities.

While the Conference of Mayors is applauding the outcome, staff will closely track the Plan’s implementation, which undoubtedly will include renewed lobbying by the communications industry.

The Conference is also urging the FCC not to establish such a rights-of-way rule or interpretation in separate proceedings, such as the Level 3 Petition, before a joint task force with state, local, and Tribal officials, as recommended by the Plan, can craft guidelines for rates, terms, and conditions for access to public rights-of-way.

The Plan’s call for action over the next decade includes the following goals and recommendations:

• Connect 100 million households to affordable 100-megabits-per'second service, building the world’s largest market of high'speed broadband users and ensuring that new jobs and businesses are created in America.

• Affordable access in every American community to ultra-high'speed broadband of at least one gigabit per second at anchor institutions such as schools, hospitals, and military installations so that America is hosting the experiments that produce tomorrow’s ideas and industries.

• Ensure that the United States is leading the world in mobile innovation by making 500 megahertz of spectrum newly available for licensed and unlicensed use.

• Move our adoption rates from roughly 65 percent to more than 90 percent and make sure that every child in America is digitally literate by the time he or she leaves high school.

• Bring affordable broadband to rural communities, schools, libraries, and vulnerable populations by transitioning existing Universal Service Fund support from yesterday’s analog technologies to tomorrow’s digital infrastructure.

• Promote competition across the broadband ecosystem by ensuring greater transparency, removing barriers to entry, and conducting market-based analysis with quality data on price, speed, and availability.

• Enhance the safety of the American people by providing every first responder with access to a nationwide, wireless, interoperable public safety network.

Read the National Broadband Plan at:

http://download.broadband.gov/plan/national-broadband-plan.pdf