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Gerard Lederer and McKenzie Schnell: FCC Continues to Undercut Local Authority on OTARD

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The authors of this Expert Opinion are Gerard Lederer and McKenzie Schnell

The Federal Communications Commission’s over-the-air reception devices (known as OTARD) rules limit local governments’, homeowner associations’ and condominium boards’ oversight authority over certain antennas and satellite dishes for certain size specifications.

In the Primary Purpose Report and Order released on January 7, the FCC expanded its rules to eliminate the primary purpose test used to justify the deployment of an OTARD. In addition, on January 11, the FCC released an Order pertaining to a City of Chicago ordinance that reaffirmed its 2018 Philadelphia Order by striking down Chicago’s satellite placement and removal ordinance.

In doing so, the FCC kept its perfect record in place: It has never ruled to uphold a single ordinance or private restriction brought before it.

The growth of OTARD rules

Adopted in response to Section 207 of the 1996 Telecommunications Act, the OTARD rules prohibit state, local and private restrictions that unreasonably impair the ability of the users of antennas that are one meter or less in diameter to deploy OTARDs on property under their exclusive use or control and in which the user has ownership or leasehold interest.

Specifically, it applies to those restrictions that (1) unreasonably delay or prevent installation, maintenance or use; (2) unreasonably increase the cost of installation, maintenance or use; or (3) preclude reception of an acceptable quality signal.

Restrictions prohibited by the OTARD rule include lease provisions, restrictions imposed by state or local laws or regulations, private covenants, contract provisions and even homeowner’s association rules. There is an exception, however, to any OTARD rule restrictions necessary for safety and historic preservation purposes.

The original OTARD rule provided protections for devices used to receive video programming signals. But in its 2000 Report and Order, the FCC expanded the rule to include customer-end devices capable of not only receiving fixed wireless signals, but also devices that had transmission capability.

Fixed wireless signals are those wireless signals that are used in the provision of voice, video and data services to a fixed location. In 2004, the FCC issued another Report and Order expanding the rules to protect hub and relay antennas so long as they were installed for the primary purpose to serve the user on whose premises the device is deployed.

Until this recent Primary Purpose Order, one could argue that an OTARD had to have as its primary purpose providing service to the user on whose premises the OTARD is deployed. But the FCC now makes clear that – in fact – the primary purpose for the installation no longer matters.

All hubs are covered by the revised rule, so long as they meet the rest of the OTARD requirements and serve a user on the premises.

Chicago had to wait 9 years for its order

Given the growth of the OTARD rules, it is of little surprise that local agency ordinances have had a hard time keeping up. Philadelphia, Chicago and Boston each adopted OTARD ordinances to address the placement of satellite dishes and a requirement that they be removed for public safety purposes when no longer in use.

Each of these ordinances were challenged by the satellite television industry (complaints were not filed by an individual dish owner), and pursuant to the automatic stay rule. Each of the ordinances was put on hold while the FCC reviewed the matter. Philadelphia had to wait seven years for its decision. Chicago had to wait nine for its decision, and Boston is still waiting for the opportunity to even defend its ordinance nine years after its ordinance had been challenged.

Despite the OTARD rules’ specific preservation of local authority to protect public safety, the FCC has consistently ruled against OTARD ordinances that relied on that reservation of authority, which was ultimately the case for Philadelphia and Chicago ordinance reviews.

In light of this, local authorities might want to consider addressing the placement and removal of satellite dishes under general rules on external placements of devices that exist today in their zoning and or building codes rather than adopting OTARD-specific rules. For instance, are there rules currently in place that address exterior lighting and how it must be deployed to minimize visual clutter? Are there other external deployments that have to be removed if they become inoperable? When and why are stealth deployments required for other exterior attachments and are their requirements for certification of installers?

Is this a guaranteed winning strategy? The answer to that is not clear, but the FCC seems at least to encourage local government to look to their general police powers to enforce OTARD removal, as noted in the January Declaratory Order where it states that “[A] city may have other means under its local police power to address out-of-service satellite dishes that present a safety hazard or encroach into the public area.”

Gerard Lavery Lederer is a Partner in Best Best & Krieger’s Municipal Law practice group in the firm’s Washington office. Gerry advocates for the rights of public and private property owners with respect to issues of law and policy arising from federal and state communications legislation and regulation. He also serves as legislative counsel and lead Washington advocate for TeleCommUnity, a collection of local governments dedicated to ensuring respect for local rights in federal legislative and regulatory activity.

McKenzie Schnell is an Associate in Best Best & Krieger’s Municipal Law practice group in the firm’s Washington office. McKenzie advises clients on broadband, cable, telecommunications service and data privacy matters, including regulatory compliance, transactions and litigation. She represents public agencies and small private entities at all stages of their  communications projects from infrastructure matters to network practices.

This Expert Opinion is a version of a legal alert, republished by permission of the authors.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views expressed in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

Broadband Breakfast is a decade-old news organization based in Washington that is building a community of interest around broadband policy and internet technology, with a particular focus on better broadband infrastructure, the politics of privacy and the regulation of social media. Learn more about Broadband Breakfast.

Broadband's Impact

Sunne McPeak: Achieving True Digital Equity Requires Strong Leadership and Sincere Collaboration

Collaboration between community leaders will be essential in ensuring success of the Biden infrastructure bill in California.

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The author of this Expert Opinion is Sunne Wright McPeak

This week, President Joe Biden signed the infrastructure bill, which includes $65 billion for expanding broadband deployment and access for all Americans.

The national plan is described as the most significant infrastructure upgrade in the three decades since the Cold War. “This is an opportunity to create an Eisenhower national highway system for the information age,” says a former White House National Security Council senior director.

For California – the nation’s largest state – it means a minimum $100 million for broadband infrastructure that is designed to expand high-speed internet access for at least 545,000 residents, particularly in unserved and underserved communities, according to the White House. The federal funding will support California’s $6 billion broadband infrastructure plan.

Closing the digital divide and achieving true digital equity requires strong leadership and sincere collaboration among public agencies, internet service providers and civic leaders to seize this unique opportunity to achieve strategic priorities in education, telehealth, transportation and economic development. The 2021 USC-CETF Statewide Survey on Broadband Adoption highlighted that a significant number of Californians will be left behind because they are unable to access the internet and other digital functionality needed for vital activities.

Now, the question is how to ensure the public’s funds will be used as effectively and efficiently as possible. California must implement a thoughtful, aggressive strategy that will maximize immediate impact and optimize return on investment. Separately, for several years, CETF has been calling for broadband deployment as a green strategy for sustainability; that urgency only grows in the wake of the COP26 climate meetings. As leaders begin to make historic investments, they should embrace these key principles for action:

  • Prioritize and drive infrastructure construction to the hardest-to-reach residents — rural unserved areas, tribal lands, and poor urban neighborhoods — and then connect all locations, especially anchor institutions (schools, libraries and health care facilities), along the path of deployment.
  • Require open-access fiber middle-mile infrastructure with end-user internet speeds sufficient to support distance learning and telehealth.
  • Strive to achieve ubiquitous deployment in each region to avoid cherry picking for more lucrative areas.
  • Encourage coordination among local governments and regional agencies to streamline permitting and achieve economies of scale.
  • Develop an open competitive process to achieve the most cost-effective investment of new dollars by optimizing use of existing infrastructure that ratepayers and taxpayers already have built.

To learn more, please contact Sunne Wright McPeak at sunne.mcpeak@cetfund.org

Sunne Wright McPeak is President and CEO of California Emerging Technology Fund, a statewide non-profit foundation with 15 years of experience addressing broadband issues to close the Digital Divide in California. This piece is exclusive to Broadband Breakfast.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC. 

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Broadband's Impact

Frank Gornick: Valley Leaders Join State to Bring Ubiquitous Broadband to the San Joaquin Valley

Bringing internet capability to communities throughout the San Joaquin Valley is the focus of a new effort.

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The author of this Expert Opinion is Frank Gornick.

As the pandemic begins to recede, it leaves behind warnings of weak links in our overall health as a functioning society. The signs are everywhere: health care, water, infrastructure, education, supply chains and equitable access to technology and opportunity.

Under the guidance of the San Joaquin Regional Broadband Consortium, and with support from the California Emerging Technology Fund, our goal is to bring ubiquitous broadband to the eight counties that compromise the San Joaquin Valley, among the most underserved regions of the state and underestimated in ability to lead and drive change.

And we will do it within a year — a bold but doable achievement.

As a start, we are announcing a new partnership, #SanJoaquinValleyNetwork, which will seek the necessary resources to deliver a world class internet to enhance the economic and human conditions because our leaders want no less for our citizens.

To be clear, this is a significant undertaking with many moving parts. Therefore, understanding the players and the territory is essential.

Understanding the infrastructure landscape is critical

It begins by identifying what internet infrastructure currently exists and assessing the internet’s capacity in the eight counties. Where is it robust and, where is it lacking.

Why this year? There is political will and the funds to do it.

In July, the governor signed SB 156, which authorizes the state to work with counties, internet service providers, school districts, hospitals, libraries, businesses, manufacturers, farmers and municipalities. The goal is to develop a statewide open-access, middle-mile broadband network, including creating rural exchange points with last-mile access to homes, businesses and essential services.

The good news is that we are building upon the existing network, not starting over. Therefore, these expenditures will be much more efficient and effective.

In addition to the clearly stated intent of the legislation, state leaders have provided $6 billion for implementation.

Continuing into November, the San Joaquin Valley counties will be organizing and planning under the auspices of SJVRBC to obtain the maximum amount of financial assistance to implement the goals of #SanJoaquinValleyNetwork.

Applying for federal grant dollars in San Joaquin Valley

As this effort gets underway, #SanJoaquinValleyNetwork will begin applying for federal and state dollars to realize our goal, bringing ubiquitous broadband to the Valley in a year.

What outcomes can we expect? First, as we have learned from the pandemic, we must do more to expand deployment and access because it is critical for so many people to have reliable, robust connections to the services they need and to access new opportunities. However, not everyone has equal access.

The internet has provided greater access to health care, but not everyone has equal access, particularly seniors, low income households and rural residents. Students at all grades for the past 18 months have had to adjust to online learning, but not everyone has equal access or capacity required to succeed and gain the skills to join the workforce of the future.

Our economic engine, the agricultural industry, has relied on breakthrough technologies that depend on high speed internet, and dependability and access to the internet is necessary for growth and productivity.

The investment to extend broadband to the most remote and underserved communities will raise the standard of living of many — and the quality of life for everyone in the San Joaquin Valley.

Billions of dollars in California and across the country will be invested in deploying internet infrastructure to rural, tribal and urban neighborhoods in poverty. Construction of publicly subsidized, open-access middle-mile infrastructure that includes last-mile deployment achieves the best of both objectives — ensuring immediate internet access for businesses and residents. That’s why business, education and civic leaders throughout the San Joaquin Valley are applauding this effort.

We urge leaders in Kern, Tulare, Kings, Fresno, Madera, Merced, Stanislaus, and San Joaquin counties to join this effort.

For more information on the #SanJoaquinValleyPartnership, please contact Dr. Frank Gornick at frankgornick@comcast.net, 559-281-5200.

Dr. Frank Gornick is the chancellor emeritus of West Hills Community College District, where he served as chancellor for 16 years. He is the project manager of the #SanJoaquinValleyNetwork and lives in Lemoore. This piece is reprinted from The Fresno Bee with permission.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC.

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Expert Opinion

Will Rinehart: Early Reports Show the Emergency Broadband Benefit is Not Reaching Its Intended Audience

A new county-level data and maps will help researchers and leaders understand impacts of the EBB program.

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The author of this Expert Opinion is Will Rinehart of the Center for Growth and Opportunity

Late last year, Congress set aside $3.14 billion to help low income households pay for broadband service and connected internet devices. In May, the Federal Communications Commission went live with the Emergency Broadband Benefit  Program, which now includes over 6.4 million enrolled households. But the program is temporary and slated to end either when funds are exhausted or six months after the end of the COVID-19 health emergency.

Since Congress is likely to extend the program through the infrastructure bill, policymakers need to understand the full extent of the program’s impact. To this end, we are releasing a county-level dataset for researchers and leaders alike that will help everyone better understand the EBB program. As many had hoped, our analysis of these enrollments suggests they are going towards low income communities.

Paradoxically, however, the program is not going towards communities where there is little uptake of broadband. Early data analysis shows that areas with low broadband uptake are less likely to enroll in the program. If leaders want to connect the unconnected, in addition to low income groups, other programs will be needed. EBB isn’t targeting these low-adoption communities.

The basics of the the Emergency Broadband Benefit

The Emergency Broadband Benefit program provides households up to $50 per month for broadband service. Those living on tribal lands could receive enhanced support of up to $75 per month toward broadband services. The program also provides a one time device discount of up to $100 for a laptop, desktop computer or tablet purchased through a participating provider.

The EBB was funded through the Consolidated Appropriations Act, which was signed on December 27, 2020. Two months later, on February 26, the FCC released a report and order, which established the EBB, laid out the rules of the program and then delegated the authority to the Universal Service Administrative Company, which the FCC created to administer the programs. In May, the new program went live and since then, USAC has released data on the number of households in a claims tracker.

Eligibility comes through one of four ways. First and most important, a household might already meet the qualifications for participation in the Lifeline program. The Lifeline program began in 1984 under Ronald Reagan‘s administration to support telecommunication services for low income households. Through the years, the FCC issued a set of orders extending the scope of the Lifeline program from its origins in plain old telephone service to mobile phones and then mobile internet. Wisely, the FCC has extended the National Verification system to accept new households. The vast majority of EBB enrollments have come through this method, at just under 79 percent.

Otherwise, a household can get the support if they have been approved for free or reduced school lunch or breakfast, experienced a substantial loss of income due to the pandemic, or received a Federal Pell Grant.

The expansion of the EBB program

As of October 10, 2021, around 6.4 million households have enrolled to be a part of the EBB. The first few weeks of the program saw the largest growth period, but that has since decreased. In the first full week of the program, nearly 1 million households signed up, and in the second week half a million followed. Since those first weeks in May, the rate of new signups each week has dropped to about 200,000 new non-tribal homes and about 2,000 tribal homes. The graph below charts the number of new enrollments each week, combining both tribal and non-tribal households.

Getting support to 6.4 million households has cost $600 million so far, $546 million of which went to service support and $53.9 million went to devices. But not every household is taking the full amount of support. The current utilization rate is about 75 percent of the maximum allowed. Most people aren’t taking the full $50 support.

Assuming that this growth rate continues, the number of households enrolled might grow to 10 million in January. If the infrastructure bill is not signed, the program might run out as early as April 2022. Less aggressive estimates of growth only push out the termination date just a month longer to May. Finally, assuming that no more people are added to the program, the $3 billion mark will be reached in July. This last assumption provides a baseline for comparison. Congress, however, seems poised to pass the infrastructure bill, which would extend the program with another $14 billion.

The reach of the EBB

To make the data more approachable, October's release has been converted from ZIP code data provided by USAC to county-level data using Housing and Urban Development crosswalks. It is available in the graph below.

Early analysis of the EBB data from Scott Wallsten at the Technology Policy Institute “suggests that areas with higher shares of low income households with broadband are signing up at lower rates than elsewhere.” In the Appendix attached to this post, the results of a new study that I conducted are detailed. It aims to chart the relationship among EBB enrollments, the percent of low income homes in a region, and the number of homes without Internet access. In contrast to Wallsten, it found that enrollments maintain a positive relationship with poverty, which makes sense. More poverty in a region should mean that the area is receiving more assistance through EBB.

But it also found that enrollments were negatively connected to the number of households without broadband in a region. Although there are many possible reasons for this finding, it should give leaders pause that areas with more people offline have fewer EBB enrollments. The relationship should be positive. While none of this is the final word on the EBB program, it is clear that the FCC needs to conduct further analysis.

While they are at it, the FCC should also properly study the effectiveness of the Lifeline program, which the Government Accountability Office has recommended since 2015. As I noted previously, “The lesson from policymakers is clear. Cost might be a barrier for some, but lowering cost doesn’t get a lot of people newly connected.” The EBB has been a lifesaver for many, but getting the unconnected onto the internet will require something more.

Will Rinehart is a Senior Research Fellow at the Center for Growth and Opportunity, where he specializes in telecommunication, internet and data policy, with a focus on emerging technologies and innovation. He was formerly the Director of Technology and Innovation Policy at the American Action Forum and before that a research fellow at TechFreedom and the director of operations at the International Center for Law & Economics. This piece is reprinted from Utah State University with permission.

Broadband Breakfast accepts commentary from informed observers of the broadband scene. Please send pieces to commentary@breakfast.media. The views reflected in Expert Opinion pieces do not necessarily reflect the views of Broadband Breakfast and Breakfast Media LLC. 

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