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Experts Call for Permitting Reform Legislation for BEAD Funding, Energy Effectiveness

Key solutions addressing permitting for clean energy projects include interagency coordination and hiring more people.

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Photo of Quindi Franco of GAO, Lori Bird of World Resources Institute, Xan Fishman of Bipartisan Policy Center, Robert Glicksman of George Washington Law School

WASHINGTON, June 28, 2023 – Permitting reform legislation, which will lower costs and shorten the timeline for infrastructure projects in the United States, is essential to the effectiveness of federally funded builds, said panelists at Broadband Breakfast event Tuesday.

Quindi Franco, assistant director at the Government Accountability Office, highlighted key issues at the Made in America Summit to address permitting reforms, including coordination between federal agencies that have a hand in land management and broadband infrastructure. 

Xan Fishman, director of Energy Policy and Carbon Management at Bipartisan Policy Center, added that agencies should consider an increased use of a memorandum of understanding to outline coordination efforts and organize which agency is responsible for what steps of the permitting process to make a more efficient process. 

Panelists were discussing permitting reform for electricity and clean energy projects funded by investments made in the Inflation Reduction Act. The only way to achieve the White House’s goal of net zero carbon emissions by 2050 is to build clean energy plants now, agreed panelists.

These permitting obstacles are not exclusive to energy plants and are similarly experienced in the telecommunication industry.

The discussion took place a day after the White House announcement of funding allocations from the Broadband Equity Access and Deployment program to states, and followed a panel of state broadband officials who said that permitting complications, especially those related to federal lands, remain an obstacle for completing broadband builds within the five-year timeline of the program.  

Franco also highlighted the importance of implementing the right policies and procedures and hiring more people to handle the load, a suggestion also made by state broadband officials on Tuesday. Federal agencies do not have enough employees to operate permitting processes, he said, claiming that the deficiency must be addressed before permitting reform can be effective.  

Not only is it critical to address federal permitting procedures, but it is also important to adjust state and local permitting issues, added Lori Bird, U.S. energy program director at the World Resources Institute. States need to take action to centralize permitting processes at the state level to streamline the process, she said. 

To watch the full videos from the Made in America Summit, sign up for the Broadband Breakfast Club!

In May, the House Energy and Commerce Committee passed the American Broadband Deployment Act of 2023 which would preempt locality authority over the deployment of telecommunication infrastructure on local public property. It would put a 60-day time limit on local review procedures for broadband projects and adds that permitting applications would be deemed granted after that deadline if the locality has not denied the project.  

The federal government should not preempt state and local permitting processes, argued Bird. We need local voices at the table to coordinate the best streamlined approach that will work for individual communities, she said. 

Fishman suggested that Congress incentivize state permitting reform in place of preempting local authority. 

Mayors and counties across the nation have added their opposition to federal preemption on their authority over the deployment of telecommunication infrastructure on local public property.  

While cautious of federal legislation that would unilaterally affect the structure and timeline of permitting processes, the National Association of Counties said it would like to see a collaboration between states and counties to improve permitting processes, said Seamus Dowdall, association legislative director for telecommunications and Technology at NACo during a Fiber for Breakfast event Wednesday. 

Clarification: This story has been updated to include reference to the different processes for energy projects impacted by the Inflation Reduction Act and the various processes for permitting reform impacting telecommunications and broadband projects.

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Infrastructure

Verizon Suing Milwaukee to Allow New Telecom Poles Ahead of Republican National Convention

Existing infrastructure is insufficient to handle extra traffic from the 2024 Republican National Convention: Verizon.

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Photo of downtown Milwaukee by Amy Meredith.

WASHINGTON, November 29, 2023 – Verizon is suing the City of Milwaukee to construct poles for its mobile wireless network.

Milwaukee denied Verizon’s request to construct poles for three small cell sites – short range antennae that increase a network’s capacity – across from the city’s Fiserv Forum arena.

The complaint, filed November 24, is looking to overturn those denials.

Verizon says the extra infrastructure is needed ahead of the 2024 Republican National Convention, which is set to be hosted at the arena. The Milwaukee Journal Sentinel reported the event is expected to draw 50,000 people, with city officials planning to bring in 4,500 extra law enforcement officers.

That heightened traffic is almost certain to be too much for Verizon’s existing network, the company said, and could lead to coverage blackouts. The city, for its part, claimed the proposed poles would “obstruct or hinder travel” and are “out of character” for the area.

The suit is one of several in which telecom companies are fighting municipalities for pole access or construction in recent years. The major infrastructure company Crown Castle has sued five cities since 2018, with Verizon and T-Mobile each going to court multiple times over the issue since 2015.

Telecommunications providers have also been butting heads with private utility companies over pole access, to the extent that the Federal Communications Commission is contemplating setting up a “rapid response team” to mediate pole attachment disputes ahead of the Biden administration’s $42.5 billion broadband expansion effort.

Those disputes often relate to timely access application reviews and the allocation of pole replacement costs associated with additional telecom equipment. The FCC has authority under the 1996 Communications Act to set the terms of pole attachment deals between telecom carriers and private utility companies. That does not include publicly owned utilities or broadband providers that are not covered by Title II of the Communications Act.

The commission’s standing policy is to prevent utilities from passing those replacement costs on to telecoms if a new pole is not “necessitated solely” by new communication equipment. 

That has not stopped disagreements, though. In thousands of public comments and meetings with commission staff, telecommunications companies have argued that utilities unfairly pass the entire cost of replacement on to them, even when poles are already unsafe and would need to be replaced regardless. Utilities say they would not normally replace the poles being used by telecom companies, either because they are structurally sound or to phase out old lines, and don’t benefit from the installation of newer poles.

The same proposed rules that would set up a rapid response team might also be a boon to telecoms. The rules would put more limits on when a utility can force an attacher to pay for pole replacements.

The FCC will vote on the rules and other measures at its December 13 meeting.

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FCC

FCC to Consider ‘Rapid Response Team’ for Pole Attachment Disputes at December Meeting

Proposed rules would also put more limits on when utilities can pass full replacement costs to telecom companies.

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Photo of a utility pole by Scott Akerman.

WASHINGTON, November 28, 2023 – The Federal Communications Commission is considering setting up a “rapid response team” to resolve pole attachment disputes, according to a public draft of the proposed rules.

The Rapid Broadband Assessment Team, or RBAT, would be available to resolve disagreements that “impede or delay broadband deployment,” according to the proposed rules. The team would be responsible for quickly engaging both sides of a pole attachment dispute and working to find a solution, which can include staff-supervised mediation.

If the parties cannot come to an agreement, the RBAT can place their dispute on the commission’s “Accelerated Docket,” meaning the FCC would adjudicate the issue in under 60 days. Not all disputes are eligible for the Accelerated Docket, as the tight time constraint makes it difficult to resolve novel or complex cases.

The commission is also considering requiring utility companies to provide attachers with their most recent pole inspection information. That’s an effort to avoid disputes before they start, according to the proposed rules.

Expanding broadband networks often involves attaching equipment to poles owned by utility companies. The arrangement has led to ongoing disputes on replacement costs and other issues between telecommunications and utility companies.

The FCC has authority under the 1996 Communications Act to set the terms of those pole attachment deals and is looking to have a system in place for expediting disputes ahead of the Biden administration’s $42.5 billion broadband expansion effort. That authority only stretches to the 26 states that have not passed their own laws on pole attachments.

Pole replacement costs

On pole replacement costs, one of the more contentious pole attachment issues, the proposed rules place more limits on when a utility can force an attacher to pay in full for a replacement pole. The commission’s standing policy prevents pole owners from passing off replacement costs if the new pole is not “necessitated solely” by an attacher’s equipment.

Since the commission first sought comment on the issue in 2022, telecommunications companies have argued that utilities unfairly pass the entire cost of replacement on to them, even when poles are already unsafe and would need to be replaced regardless. Utilities say they would not normally replace the poles being used by telecom companies, either because they are structurally sound or to phase out old lines, and don’t benefit from the installation of newer poles.

The draft rules would expand the commission’s definition of a “red tagged” pole, the replacement of which cannot be allocated entirely to an attacher. Under current FCC rules, a red tagged pole is one that is out of compliance with safety regulations and has been placed on a utility’s replacement schedule.

The updated definition would do away with the compliance requirement, defining a red tagged pole as one flagged for replacement for any reason other than its inability to support extra telecom equipment.

The proposed rules also explicitly clarify some situations in which replacements are not “necessitated solely” by new telecom equipment, including when a pole fails engineering standards or is already on a replacement schedule.

In addition, the rules specify that when an already defective pole needs to be replaced with a larger pole to accommodate new equipment, the attacher would only be responsible for the extra cost of the larger pole, not the cost of an equivalent pole.

If the proposed rules are approved, the FCC would also look for comments on processing bulk pole attachment applications and on changing rules on when attachers can do their own work to prepare a pole for attachments.

The measures will be voted on at the commission’s December 13 meeting.

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Funding

North Carolina Releases Final Guidance on $100 Million Pole Replacement Program

Providers may receive up to $10,000 for each utility pole they replace in unserved areas.

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Photo of Nate Denny, deputy secretary for broadband and digital equity at the North Carolina Department of Information Technology.

WASHINGTON, November 27, 2023 – North Carolina’s broadband office released on Monday final guidance for its $100 million pole replacement program.

The program, funded by the American Rescue Plan Act, will reimburse broadband providers for utility pole replacement costs. Expanding networks can involve attaching equipment to those utility poles. When a pole needs to be replaced to accommodate more equipment, pole owners typically pass the cost on to attachers.

Telecommunications companies have cited this extra cost as a barrier to quick broadband deployments, something utility companies dispute. The two industries have been in conflict on the issue for years, with both continuing to push the FCC to weigh in on a cost sharing regime.

North Carolina’s plan is an effort to smooth over the issue for future broadband expansion efforts, Nate Denny, the state department of information technology’s deputy secretary for broadband and digital equity, said in a statement. 

“It addresses a significant barrier to closing the digital divide in remote parts of our state,” he said.

Under the program, broadband providers can apply for 50 percent of the replacement cost for each pole replaced, up to $10,000 per pole. Pole replacement costs in unserved areas after June 1, 2021 are eligible for reimbursement. 

The program will kick off in February 2024 and accept applications from qualified providers.

The FCC has authority in 26 states over the terms of agreements between investor-owned utilities and telecom companies, which does not include publicly owned utilities or broadband providers that solely provide internet. The agency is set to vote on updated pole attachment rules at its December meeting.

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