Tag Archives: franchise agreements

The Push for Permitting Reform

There is currently a bill being considered in Congress that would mandate a new set of permitting requirements for wireless and wired infrastructure. The bill is H.R. 2289 – the American Broadband Deployment Act of 2025.

The bill first started with the goal of making it easier to get permits for BEAD and other federally grant-funded projects, but the bill has grown to encompass all local and state permitting for telecommunications infrastructure.

The heart of the changes that would come from the passage of the bill are as follows:

  • The legislation would create a shot clock from 60 to 150 days during which a state or local government must approve or deny a request for a permit to construct a wireless or wireline project. If the locality doesn’t respond in that time frame, the request is automatically assumed to be “deemed granted”.
  • The legislation would create similar shot clock rules for any carrier seeking a cable franchise.
  • The bill would eliminate the need for environmental impact studies or historic preservation reviews for any project not considered to be a major federal action under NEPA rules.
  • The law would make it easier to get permits on tribal lands.
  • The law would restrict permitting fees to recover only actual costs, instead of the traditional standard of reasonable costs.

Interestingly, the bill doesn’t address the biggest permitting issue in the rural areas where BEAD grants will be built, which is getting permits on federal lands. I’ve worked with a few ISPs where the process of crossing federal lands took almost two years. However, the law applies to state highways and state parklands, so it will be easier to build across a state park, but not a federal one.

The legislation doesn’t address the other issues with getting permits in rural areas. While I am sure there are exceptions, most of the folks I know who are building rural fiber projects tell me that most County governments invite them in with open arms. The rural permitting problems that cause the most delays and headaches continue to be crossing railroads and bridges, which are not addressed by the legislation.

As you might imagine, this legislation is being vigorously opposed by local governments, who say the new permitting preempts local authority over public right-of-way, zoning, and permitting. They argue that the restriction of using actual costs means they can’t charge enough to pay for the longer-term monitoring and management of granted rights-of-way.

The biggest local objection to the law is that this would severely limit the ability of local officials to regulate the placement, construction, and modification of cell towers. It would finally give cellular companies the ability to place towers in residential areas or near historic sites.

The legislation clearly reads like a wish list for the giant carriers and gives them the freedom to build what they want, where they want. The authors of the bill took a bill intended to make it easier to build grant-funded rural networks and applied it to the whole country. That feels like solving a relatively small rural problem related to speeding up grant construction as a pretext to apply a sledgehammer solution for all construction. The majority of broadband construction happens in cities and suburbs, not in rural America. Some of those places have complicated situations that should not be lumped together with rules aimed at speeding up rural grants.

I’m sure there will be ISPs and carriers that read this who can tell horror stories of why this is needed. But I also know folks who have built a huge number of rural projects where permitting from local governments was not difficult or expensive.

It will be interesting to see if this passes in Congress. There were several broadband-related bills that passed the House last week, and this bill didn’t make it yet. Every member of the House who votes for this is telling the local governments in their district that Congress knows more about permitting than the local folks who have been doing this forever.

The Proliferation of Small Wireless Devices

Cities nationwide are suddenly seeing requests to place small wireless devices in public rights-of-way. Most of the requests today are for placing mini-cell sites, but in the near future there are going to be a plethora of other outdoor wireless devices to support 5G broadband and wireless loops.

Many cities are struggling with how to handle these requests. I think that once they understand the potential magnitude of future requests it’s going to become even more of an issue. Following are some of the many issues involved with outdoor wireless electronics placement:

Franchising. One of the tools cities have always used to control and monitor placement of things in rights-of-way is through the use of franchise agreements that specifically spell out how any given company can use the right-of-way. But FCC rules have prohibited franchises for cellular carriers for decades – rules that were first put into place to promote the expansion of cellular networks. Those rules made some sense when cities only had to deal with large cellular towers that are largely located outside of rights-of-way, but make a lot less sense for devices that can be placed anywhere in a city.

Aesthetics. These new wireless devices are not going to be placed in the traditional locations like large cellular towers, water towers and rooftops of buildings. Instead the wireless providers will want to place them on existing telephone poles and light poles. Further, I’ve heard of requests for the placement of new, taller poles as tall as 100 feet that would be used just for the wireless network.

The devices that will be used are going to vary widely in size and requirements, making it difficult to come up with any one-size-fits-all new rules. The devices might vary in sizes ranging from a laptop computer up to a small dorm refrigerator. And some of the devices will be accompanied by support struts and other devices that together make for a fairly large new structure. The vast majority of these devices will need an external power feed (some might be solar powered) and many are also going to need a fiber feed.

It’s also expected that 5G devices are going to want relatively clear line-of-sight and this means a lot more tree-trimming, including trimming at greater heights than in the past. I can picture this creating big issues in residential neighborhoods.

Proliferation. I doubt that any city is prepared for the possible proliferation of wireless devices. Not only are there four major cellular companies, but these devices are going to be deployed by the cable companies that are now entering the cellular market along with a host of ISPs that want to deliver wireless broadband. There will also be significant demand for placement for connecting private networks as well as for the uses by the cities themselves. I remember towns fifty years ago that had unsightly masses of telephone wires. Over the next decade or two it’s likely that we will see wireless devices everywhere.

Safety. One of the concerns for any city and the existing utilities that use poles and rights-of-way is the safety of technicians that work on poles. Adding devices to poles always makes it more complicated to work on a pole. But adding live electric feeds to devices (something that is fairly rare on poles) and new fiber wires and the complexity increases again – particularly for technicians trying to make repairs in storm conditions.

Possible Preemption of City Rights. Even after considering all these issues, it’s possible that the choice might soon be moot for cities. At the federal level both the FCC and Congress are contemplating rules that make it easier for cellular companies to deploy these devices. There are also numerous bills currently in state legislatures that are looking at the same issues. In both cases most of the rules being contemplated would override local control and would institute the same rules everywhere. And as you might imagine, almost all of these laws are being pushed by the big cellular companies and largely favor them over cities.

It’s easy to understand why the cellular companies want universal rules. It would be costly for them to negotiate this city by city. But local control of rights-of-way has been an effective tool for cities to use to control haphazard proliferation of devices in their rights-of-way. This is gearing up to be a big battle – and one that will probably come to a head fairly soon.

The Gigabit Dilemma

common carrierCox recently filed a lawsuit against the City of Tempe, Arizona for giving Google more preferable terms as a cable TV provider than what Cox has in their franchise with the city. Tempe undertook the unusual step in creating a new license category of “video service provider’ in establishing the contract with Google. This is different than Cox, which is considered a cable TV provider as defined by FCC rules.

The TV offerings from the two providers are basically the same. But according to the Cox complaint Google has been given easier compliance with various consumer protection and billing rules. Cox alleges that Google might not have to comply with things like giving customers notice of rate changes, meeting installation time frames, and even things like the requirement for providing emergency alerts. I don’t have the Google franchise agreement, so I don’t know the specific facts, but if Cox is right in these allegations then they are likely going to win the lawsuit. Under FCC rules it is hard for a city to discriminate among cable providers.

But the issue has grown beyond cable TV. A lot of fiber overbuilders are asking for the right to cherry pick neighborhoods and to not build everywhere within the franchise area – something that incumbent cable companies are required to do. I don’t know if this is an issue in this case, but I am aware of other cities where fiber overbuilders only want to build in the neighborhoods where enough customers elect to have them, similar to the way that Google builds to fiberhoods.

The idea of not building everywhere is a radical change in the way that cities treat cable companies, but is very much the traditional way to treat ISPs. Since broadband has been defined for many years by the FCC as an information service, data-only ISPs have been free to come to any city and build broadband to any subset of customers, largely without even talking to a city. But cable TV has always been heavily regulated and cable companies have never had that same kind of freedom.

But the world has changed and it’s nearly impossible any more to tell the difference between a cable provider and an ISP. Companies like Google face several dilemmas these days. If they only sell data they don’t get a high enough customer penetration rate – too many people still want to pay just one provider for a bundle. But if they offer cable TV then they get into the kind of mess they are facing right now in Tempe. To confuse matters even further, the FCC recently reclassified ISPs as common carriers which might change the rules for ISPs. It’s a very uncertain time to be a broadband provider.

Cities have their own dilemmas. It seems that every city wants gigabit fiber. But if you allow Google or anybody into your city without a requirement to build everywhere within a reasonable amount of time, then the city is setting themselves up for a huge future digital divide within their own city. They are going to have some parts of town with gigabit fiber and the rest of the town with something that is probably a lot slower. Over time that is going to create myriad problems within the city. There will be services available to the gigabit neighborhoods that are not available where there is no fiber. And one would expect that over time property values will tank in the non-fiber neighborhoods. Cities might look up fifteen years from now and wonder how they created new areas of blight.

I have no idea if Google plans to eventually build everywhere in Tempe. But I do know that there are fiber providers who definitely do not want to build everywhere, or more likely cannot afford to build everywhere in a given city. And not all of these fiber providers are going to offer cable TV, and so they might not even have the franchise discussion with the city and instead can just start building fiber.

Ever since the introduction of DSL and cable modems we’ve had digital divides. These divides have either been between rich and poor neighborhoods within a city, or between the city and the suburban and rural areas surrounding it. But the digital divide between gigabit and non-gigabit neighborhoods is going to be the widest and most significant digital divide we have ever had. I am not sure that cities are thinking about this. I fear that many politicians think broadband is broadband and there is a huge current cachet to having gigabit fiber in one’s city.

In the past these same politicians would have asked a lot of questions of a new cable provider. If you don’t think that’s true you just have to look back at some of the huge battles that Verizon had to fight a decade ago to get their FiOS TV into some cities. But for some reason, which I don’t fully understand, this same scrutiny is not always being applied to fiber overbuilders today.

It’s got to be hard for a city to know what to do. If gigabit fiber is the new standard then a city ought to fight hard to get it. But at the same time they need to be careful that they are not causing a bigger problem a decade from now between the neighborhoods with fiber and those without.