1. Michelle Gowdy Executive Director
Broadband & Cable
Michelle Gowdy
Executive Director
VIRGINIA BEACH
MAY 23, 2019

2. Definitions
Broadband – a high-capacity transmission technique using a wide range of frequencies, which enables a large number of messages to be communicated simultaneously.
The term is typically used to denote the minimum speed at which data can be transferred.
The FCC requires:
Minimum download speed 25Mbps
Minimum upload speed 3Mbps
The Virginia Telecommunication Initiative (VATI) requires:
Minimum download speed 10Mbps
Minimum upload speed up to 3Mbps

3. Definitions Pole Attachment -
The definition differs slightly between the U.S. code and the Virginia code:
“Any attachment by a cable television system or provider of telecommunications service to a pole, duct, conduit, or right-of-way owned or controlled by a utility.” (47 USC §224)
“Any attachment by a cable television system or provider of telecommunications service to a pole, duct, conduit, right-of-way or similar facility owned or controlled by a public utility.” (VA Code § )

4. Wireless
“Wireless services” means: (i) "personal wireless services" as defined in 47 U.S.C. § 332(c)(7)(C)(i). (ii) "personal wireless service facilities" as defined in 47 U.S.C. § 332(c)(7)(C)(ii), including commercial mobile services as defined in 47 U.S.C. § 332(d), provided to personal mobile communication devices through wireless facilities. (iii) any other fixed or mobile wireless service, using licensed or unlicensed spectrum, provided using wireless facilities.

5. Broadband / Wireless
Wireless = Primarily the Carriers: AT&T, Sprint, T-Mobile, Verizon
Legislation has primarily attempted to deal with zoning and fees.
Began in 2016 with HB1347 which sought to cap fees and provide rights-of-way at no cost for “any domestic or foreign telecommunications provider or broadband provider.”
The bill was carried over to 2017
In 2017 HB2196 sought no special use permit requirement for small cell facilities, time constraints on approvals, access to rights of way, limitations on fees for any “wireless service provider or wireless infrastructure provider.”
This bill was killed on the House floor

6. Broadband / Wireless (cont.)
In 2018 HB1258 and HB1427 passed and became effective on July 1, 2018.
Under the new legislation:
Administrative Review Projects vs. Standard Process Projects
Fee Limitations
Time Constraints for the review process
Limitations on screening / aesthetics
Annual right-of-way use fee was created:
$1,000 at or below 50 feet
$3, – 120 feet
$5,000 above 120 feet
Plus $1 per square foot of ground “stuff”

7. FCC Weighs In on Wireless
March 30, 2017 – the Federal Communications Commission opened WT Docket No “Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment.”
Some of the findings:
“We conclude that ROW access fees, and fees for the use of government property in the ROW, such as light poles, traffic lights, utility poles, and other similar property…..violate Sections 253 or 332(c)(7) unless…”
fees are a reasonable approximation of the state or local government’s costs
only objectively reasonable costs are factored into those fees
the fees are no higher than the fees charged to similarly-situated competitors in similar situations

8. FCC Weighs In on Wireless (cont.)
Findings (cont.)
“Fees are only permitted to the extent that they are non-discriminatory and represent a reasonable approximation of the locality’s reasonable costs.”
“…we create a new set of shot clocks tailored to support the deployment of Small Wireless Facilities.”
“Conclude that a failure to act within the new small wireless facility shot clock constitutes a presumptive prohibition on the provision of services. Accordingly, we would expect all required authorizations without further delay.”
Primary Reason: Effective Prohibition of Service

9. Fairfax
One of the requirements for compliance with the FCC is to have Aesthetic Guidelines in place.
Fairfax City approved their guidelines on April 12, 2019.
Signage/Logos/Lights/Decals/Cooling Fans
Paint Colors
Concealment/Enclosures

10. VML Files with the FCC / Others Courts
The Virginia Municipal League (VML), The City of New Orleans, Kentucky League of Cities, Mississippi Municipal League, Pennsylvania Municipal League, Alabama League of Municipalities, Arkansas Municipal League, Nevada League of Cities & Municipalities, Town of Middleburg, VA, Jefferson Parish, Louisiana; and Government Wireless Technology & Communications Association
FILED A PETITION FOR RECONSIDERATION OF ACTION IN RULEMAKING PROCEEDING
Status: Still Pending
Minor Victory: Acknowledgment by industry in two areas:
$270 fee is not an absolute cap
This bill will not expand service

11. Court Filings Numerous Cities filed lawsuits throughout the Country.
These lawsuits are now consolidated in the Ninth Circuit.
There was a request for a stay which was denied so this case will move forward.

12. Broadband in Virginia
Governor Northam established the position of Chief Broadband Advisor (held by Evan Feinman)
State broadband plan created: Commonwealth Connect
Virginia Telecommunications Initiative (VATI) established in 2016 with the mission of extending broadband service to currently unserved areas.
Funding in 2017 & $1M each
2019 $4M
2020 $19M
Things to know:
The assets for Last-Mile Service projects must be owned by a private provider
Tobacco Commission has a similar model with its broadband loans
State has asked localities to assist with mapping the gaps in coverage

13. FCC Cable
FCC MB Docket No “Implementation of Section 621(a)(1) of the Cable Communications Policy Act of 1984 as Amended by the Cable Television Consumer Protection and Competition Act of 1992.” Concludes that: “…with certain limited exceptions, that cable-related, in-kind contributions required under a franchise agreement, such as free or discounted cable service to local governments, should be treated as “franchise fees” subject to the statutory five percent cap on such fees.” Also: “…that local franchising authorities are prohibited by federal law from using their video franchising authority to regulate most non-cable services offered over cable systems by incumbent cable operators, including information services, such as broadband Internet access service.”

14. FCC Cable (cont.) What does it mean?
Under the federal Cable Act, franchise fees are limited to 5% of gross revenues from cable service – currently additional funding for PE capital costs and in- kind benefits, such as free service to schools & government sites can be negotiated over the 5% cap.
The FCC proposal would make any obligation under the franchise agreement (other than PEG capital costs) count against the 5% cap. There is a real potential that any of the following items could cause a locality to hit the cap:
Market value of free service to schools and government buildings.
Potential to include cost of compliance with undergrounding.
Question as to whether construction of a studio would be counted.

15. FCC Cable (cont.) Additional Considerations
Could the Communication Sales & Use Tax count as a franchise free? We think not (Tax of General Applicability).
The FCC seeks to reimpose its “mixed-use network” rule – to prohibit localities from “regulating” non-cable services offered over cable systems and from “regulating any facilities and equipment used in the provision of any services other than cable services over the cable systems of incumbent cable operators that are common carriers.”
This endangers local oversight over the physical plant of cable operators.
Does the FCC intend to preempt ANY regulation of non-cable services no matter what state or local authority exists? If so, this affects cities’ rights to franchise telecommunications systems in VA.

16. Related News FCC Chairman backs T-Mobile/Sprint merger
Guaranteed 97% coverage of US population within 3 years of merger.
Guaranteed 85% of rural US covered within 3 years.
Next Gen 911 in Virginia
A discussion of expanding communications sales & use tax to prepaid phones and cards.
US Telecom
Will be speaking at VML legislative committee on June 6th regarding their mapping of broadband pilot project in Virginia

17. Virginia Municipal League
Questions?
Michelle Gowdy
Executive Director
Virginia Municipal League
(434)

18. FCC Small Cell Order and Pole Attachments
Jim Horwood
MEPAV 2019 Annual Conference
Virginia Beach, Virginia
May 23, 2019

19. FCC Small Cell Order – Three Key Impacts
FCC’s ruling applies to municipal pole attachments (Declaratory Ruling issued September 27, 2018)
Pole Attachment Act, 47 USC § 224, exempts municipal utilities from FCC’s jurisdiction
FCC nevertheless concludes that its order “extends to fees for all government-owned property in the [right of way], including utility poles.”

20. FCC Small Cell Order – Three Key Impacts
Local government fees for small cell wireless facilities (SWF) must not exceed a reasonable approximation of cost; municipality must prove that costs above the default caps are cost-based:
$500 for a single up-front application that includes up to five SWFs, with an additional $100 for each SWF beyond five
$270 per SWF, per year, for all recurring fees

21. FCC Small Cell Order – Three Key Impacts
New “shot clocks” that apply to applications to install SWFs in the ROW and on municipal poles.
Requests to site SWFs on preexisting structures/poles: 60 days
SWF siting requests that involve construction of new poles or support structures: 90 days

22. APPA and Others Are Seeking Court Review
VML and others petitioned FCC for reconsideration of the Small Cell Order
APPA and others appealed directly to U.S. Courts of Appeals to review the order
All cases were consolidated in the Court of Appeals for the Ninth Circuit
FCC requested the Ninth Circuit to hold the appeals in abeyance, until after the FCC acts on the petition for reconsideration; APPA and others opposed the request; the Court denied the FCC’s request

23. Key Issue for APPA on Appeal
Whether the FCC’s decision to regulate access to public power utility poles exceeds the FCC’s authority and is contrary to law, including, but not limited to, the Constitution of the United States and the Communications Act, and is also arbitrary, capricious, and an abuse of discretion.

24. MEPAV Will Support APPA Appeal
MEPAV will file as an amicus curiae (“friend of the court”) in support of APPA
Amicus curiae briefs support and complement, not rehash, the parties’ arguments; they provide something “new”
Opportunity to explain real-world impact of the Small Cell Order

25. MEPAV’s Arguments (preliminary, to be further developed)
FCC conflates all governmental entities (single simultaneous shot clock for all approvals; cap on total fee for municipality and utility combined).
MEPAV will explain that public power utilities are not one and the same as the governmental entity: public power often has different governance than the municipality; public power at times serves customers outside municipal boundaries

26. MEPAV’s Arguments (preliminary, to be further developed)
FCC ignores realities of municipal approval processes
MEPAV will explain the kind of issues that must be considered (e.g. safety, electric reliability, etc.) when approving pole attachments

27. SPIEGEL & MCDIARMID LLP
QUESTIONS?
JIM HORWOOD
SPIEGEL & MCDIARMID LLP
1875 Eye Street, NW, Suite 700
Washington, DC 20006