Enlarge/ FCC Chairman Ajit Pai with his oversized coffee mug in November 2017.Getty Images | Bloomberg

A broadband deployment advisory group organized by the Federal Communications Commission is trying to make it harder for cities and towns to build and operate their own Internet services.

The Broadband Deployment Advisory Committee (BDAC) was set up by the FCC last year and is now releasing draft versions of its recommendations. One member—the mayor of San Jose, California—quit the group today out of frustration that the recommendations favor the interests of private industry over municipalities.

The problem "became particularly apparent at our most recent meeting in Washington, DC," San Jose Mayor Sam Liccardo told FCC Chairman Ajit Pai in his resignation letter.

Liccardo continued:

One working group, which did not have a single municipal representative among its 30+ participants, created a draft model state code that included provisions to eliminate all municipal control over when, how, and whether to accept industry applications for infrastructure deployment. Another working group had an industry representative dramatically re-write its draft municipal code in the 11th hour, pushing aside the product of months of the working group’s deliberations. The result, in each case, were provisions that plainly prioritized industry interests.

It has become abundantly clear that, despite the good intentions of several participants, the industry-heavy makeup of BDAC will simply relegate the body to being a vehicle for advancing the interests of the telecommunications industry over those of the public. The apparent goal is to create a set of rules that will provide industry with easy access to publicly-funded infrastructure at taxpayer-subsidized rates, without any obligation to provide broadband access to underserved residents.

FCC Commissioner Mignon Clyburn also criticized the recommendations.

"It is regrettable that the concerns of localities do not appear to have been fully addressed," Clyburn, one of two Democrats on the Republican-controlled FCC, told the advisory committee yesterday. "While I appreciate the BDAC's acknowledgement that public-private partnerships may provide solutions to bridge those divides, I noticed that there was an expressed preference for industry over municipalities in broadband deployment efforts. As I have said many, many times before, one size does not fit all, and private industry infrastructure investments do not always flow to communities that are most in need."

Clyburn expressed further dismay today after hearing of Liccardo's resignation. "It is deeply disappointing to me that it has reached the point that San Jose Mayor Sam Liccardo felt compelled to resign," she said. "Disregarding an elected official representing one of the largest US cities in the nation is unconscionable."

Pai did not respond directly to Liccardo's and Clyburn's accusations.

"The Broadband Deployment Advisory Committee and its working groups have brought together 101 participants from a range of perspectives to recommend strategies to promote better, faster, and cheaper broadband," Pai said in a statement provided to Ars. "Bridging the digital divide continues to be my top priority, and I look forward to continuing to work with the BDAC and many others to remove regulatory barriers to broadband deployment and to extend digital opportunity to all Americans."

Little focus on underserved areas

San Jose officials were disappointed that the BDAC focused on unserved rural areas to the exclusion of underserved areas where broadband exists but is insufficient, San Jose Chief Innovation Officer Shireen Santosham told Ars.

BDAC recommendations could reduce municipal control over the public rights-of-way used for broadband infrastructure, Santosham said. And while final details are still being worked out, Santosham is concerned that telecoms could get easements to the private property of homeowners without having to negotiate directly with the property owners. That would let ISPs pay lower rates and have the same access rights as utilities without being regulated as utilities, she said.

Another problem is that "there's literally nothing in the model code for municipalities around digital inclusion; making sure that we're getting [broadband] to all Americans is just not there," Santosham said.

Liccardo served as vice-chair of the BDAC working group that drafted the model broadband deployment code for municipalities. It was chaired by a representative of the New York State Wireless Association, a lobby group for wireless ISPs.

Among others, the municipal working group included representatives of AT&T, Mimosa Networks, the City of New York, Cox Communications, the USTelecom industry lobby group, T-Mobile, and Google Fiber.

The working group that created a model code for states included representatives of Comcast, the CTIA mobile industry lobby group, the Fiber Broadband Association lobby group, Facebook, the Satellite Industry Association, the Utah governor's office, and others.

The model code for states discourages city-owned and operated networks.

Model state code discourages city-run networks

When contacted by Ars, Clyburn's office said it was concerned about language in the draft of the state model code, which is meant to be adopted by individual states as their public policies for encouraging broadband deployment.

"The preference of the State is that municipal Broadband networks be built, owned, and operated by private industry," the model code says.

The code doesn't totally rule out city-owned and operated networks in rural areas that lack broadband, saying:

But the State also recognizes that in Rural areas the economics of building such networks may be economically less viable, relative to other areas of the State, such that private industry interest in deploying Broadband Facilities may not exist in a timeframe or at a price to the consumer that the municipality finds reasonably acceptable.

But the code requires cities and towns to conduct extensive analyses of all other options before constructing and operating their own networks. If states make this code binding on municipalities, a private ISP could sue a city or town if the private ISP claims the municipality didn't follow every requirement.

The model code could thus further tip the balance toward privately built networks. About 20 states already have laws restricting the growth of municipal broadband.

Even if a city or town jumps through all the hoops listed in the model state code in order to build its own network, it would have to make the network resources available to private providers. This would ensure that private ISPs benefit even if cities and towns pay for all construction.

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