Opposition to HR-3557

Link to opposition letter.

On May 24, 2023, the House Energy and Commerce Committee passed out of the full committee an amendment in the nature of a substitute titled the American Broadband Deployment Act of 2023 (H.R. 3557). H.R. 3557 would enact new restrictions on a variety of state and local land use and zoning authorities pertaining to the deployment of telecommunications infrastructure, including both wireless deployment and wireline deployment, as well as impose limitations on the ability for counties to negotiate and renew cable franchise agreements. The bill passed on a party-line vote of 27-23.

The following provisions are bad for counties and are included in H.R. 3557:

• Preemption of state and local zoning authority over the placement of wireless technologies, including towers, equipment, and small cells;
• Elimination of state and local government authority to manage public rights-of-way (ROW) by collecting fair market compensation for their use and management, and limiting ROW fees to ”actual, objectively reasonable costs”;
• Enactment of shot clock rules and “deemed granted” provisions which place timelines for the review and approval of telecommunications projects;
• Prohibition of state and local governments from revoking cable franchises.

The National Association of Counties (NACo), alongside local government organization partners the National League of Cities (NLC), the U.S. Conference of Mayors (USCM), and the National Association of Telecommunications Officers and Advisors (NATOA) urged the House Subcommittee on Communications and Technology to reject legislation that would infringe upon local authorities prior to an April 19 markup of the component bills to H.R. 3557. A link to the letter can be found here.

Counties strongly urge Congress to preserve all local land use and zoning authorities throughout the stages of deployment of broadband infrastructure projects. Counties stand ready to serve as partners in the deployment of broadband infrastructure projects, and a preemption of local decision-making authority would only subvert the intentions of historic federally-funded broadband programs by reducing the ability of counties to ensure deployment projects will meet all community needs.

Link to opposition letter.

On May 24, 2023, the House Energy and Commerce Committee marked up 19 bills. One bill, H.R. 3557, the American Broadband Deployment Act of 2023, is of particular interest to local governments. This legislation would codify in statute recent actions taken by the Federal Communications Commission to preempt local authority over wireless telecommunications facility siting and cable franchises and impose several new preemptions. The bill advanced along partisan lines as amended, with Ranking Member Pallone and Reps. Ruiz, Dingell, Matsui, and Tonko offering their own amendments to eliminate or reduce these preemptions. Those representatives also noted the outspoken objections of local and tribal government to the bill.

When the committee held an initial hearing on broadband permitting streamlining, including a draft of the American Broadband Deployment Act, no state or local government was invited to testify. NLC and other local stakeholders highlighted the lack of local input, as well as the harms of communications infrastructure preemption for local governments. In particular, NLC flagged the “deemed granted” provisions included in the passed version of H.R. 3557, which go beyond existing regulatory preemption and would automatically grant requests to construct communications equipment if the local government has not made a determination within as few as 60 days, depending on the request type . . .

Local permitting and cable franchising processes are intended to make sure that communications infrastructure is deployed equitably and in the public interest, that work is done safely and in a way that protects valuable public resources, including the rights of way. Local governments are the stewards of these finite public resources. There is no evidence that heavy-handed preemptive mandates, such as harsh permitting shot clocks, deemed granted policies, or restrictions on permitting fee arrangements or cable franchises, have expedited the deployment of broadband infrastructure . . .

City leaders should call their members of Congress and urge them to oppose H.R. 3557. . . . Cities must call on Congress to treat local governments as partners in the effort to close the digital divide, not enemies. Congress and federal agencies must respect local processes, which are best managed at the level of government closest and most responsive to the people. Click here to access talking points and your representative’s office phone number.

Link to opposition letter.

Resolution Opposing H.R. 3557, the American Broadband Act of 2023

1. WHEREAS, H.R. 3557, “American Broadband Act of 2023,” was introduced with little notice and without full text on May 22, 2023, and was approved by the House Committee on Energy and Commerce, and ordered to be reported following markup only two days later on May 24, 2023; and

2. WHEREAS, prior to H.R. 3557’s introduction, on April 19, 2023, only a single hearing was held on the eventual contents, before the House Communications Subcommittee, the testimony before which consisted exclusively of that from witnesses supportive of federal preemption and to which not a single state or local government representative was invited to testify; and

3. WHEREAS, H.R. 3557 would pre-empt local governments’ rights-of-way compensation and management authority, zoning powers, cable franchising authority, and property rights; and

4. WHEREAS, the proposed bill would bestow on broadband providers an unprecedented federal grant of access to state and local public property, but impose no obligations on those providers to serve “unserved” and “underserved” Americans; and

5. WHEREAS, H.R. 3557 would mandate that siting decisions be “deemed granted” if not denied by a local government within 60 days, which is as little as 25 % of the time the federal government gives itself to make identical decisions concerning access to federal property; and

6. WHEREAS, H.R. 3557 would make virtually any local government decision not to allow the installation of a proposed wireless facility at a provider’s request a “prohibition” preempted by federal law, and would require local governments to draft and publicly release a written explanation for the decision to deny an application on the same day it votes on the decision — a virtually impossible task because such written decisions typically require the examination and analysis of evidence presented to local council; and

7. WHEREAS, the bill would substitute the FCC for the local federal district court as the reviewing body for challenges to local government decisions regarding wireless facility applications, thus breaking the promise made by Congress in 1996 that local governments would not be required to travel to Washington to defend local decisions; and

8. WHEREAS, H.R. 3557 would also eliminate cable franchise renewals, thereby restricting the ability of state or local franchising authorities to enforce franchise obligations such as public, educational, and government channel capacity and facilities, customer service requirements, and system build-out requirements; and

9. WHEREAS, H.R. 3557 would affirmatively grant cable operators the right to use local rights-of-way to provide non-cable services while prohibiting localities from imposing any fees on non-cable services for use of those rights-of-way.

10. NOW, THEREFORE, BE IT RESOLVED, that The United States Conference of Mayors opposes HR 3557 and urges the House and Senate not to pass this legislation.

Link to opposition letter.

On April 19, 2023, the Energy & Commerce Subcommittee on Communications and Technology will hold a hearing entitled “Breaking Barriers: Streamlining Permitting to Expedite Broadband Deployment.” According to the Committee’s Majority Staff Memo, the hearing will take up more than 30 bills aimed at what are described as ‘Federal Barriers’ and ‘State and Local Government Obstacles’ and ‘Pole Attachments (Access to poles)’ to broadband infrastructure deployment.

See the hearing memo and a list of bills here.

The Majority Staff pose a set of questions for the hearing:

1. What challenges exist at the federal, state, and local levels that delay or burden broadband deployment?
2. How can Congress help expedite or streamline the process for broadband deployment?
3. Is attaching telecommunications equipment on municipally or cooperatively-owned poles more difficult or expensive than on other poles?

On behalf of the nation’s counties, cities, towns and villages, the National League of Cities (NLC), United States Conference of Mayors (USCM), National Association of Counties (NACo) and the National Association of Telecommunications Officers and Advisors (NATOA) have signed a joint letter of response to the Subcommittee, stating:

“Residents in every state deserve the opportunity to decide locally whether public investment in or ownership of broadband infrastructure is the right choice for their community. Having these options available ensures that federal, state, and local infrastructure investments promote consumer choice, competition, and innovation.

Congress and the Constitution have long recognized the property rights of local governments and local governments’ police powers to protect and preserve the safety, well-being and aesthetics of their communities. Congress has historically recognized these rights in Sections 224, 253 and 332 of the Telecommunications Act.

As the level of government closest to the people, we oppose heavy-handed federal overreach into local land use, permitting, and franchise negotiation decisions. Many of the bills the Subcommittee will consider during this hearing would preempt or undermine the property rights of local governments and local governments’ police powers to protect and preserve the safety, well-being and aesthetics of their communities, which Congress and the Constitution have long recognized.

These authorities are critical to conduct responsible stewardship of public property, protect public safety, and preserve the rights of residents as consumers of broadband services and neighbors to the infrastructure that makes connectivity possible. We fear the unintended consequence of some of these bills will be to impose costs on local governments, burdens on our taxpayers, interference with public safety and otherwise harm local protections that are the heart of localism without substantively improving broadband deployment.

May 24, 2023 | Link to opposition letter

Dear Chair McMorris Rodgers and Ranking Member Pallone:

The Georgia Municipal Association (GMA) stands OPPOSED to H.R. 3557, the American Broadband Deployment Act of 2023. We oppose the bill for the reasons listed below.

1. This measure represents a substantial federal overreach into a fundamentally local process: the oversight of the placement of wireless [telecommunications] facilities on locally-managed public rights of way.

2. This bill creates unfunded mandates on local governments and inhibits their ability to be directly responsive to residents and good stewards of public resources.

3. When the Communications and Technology Subcommittee held its broadband permitting hearing in April 2023, despite considering multiple bills impacting state and local permitting processes, no state or local officials were invited to testify. GMA urges the committee NOT to move H.R. 3557 forward without the opportunity to receive sufficient input from state and local governments.

4. From 2017 – 2020, I was appointed by Chairman Ajit Pai to serve on the FCC’s Broadband Deployment Advisory Council (BDAC), including serving as co-chair of the Model Code for Municipalities Working Group, as well as on a number of committees and subcommittees. During my tenure on this group, I was able to share a great deal of information with the FCC members and BDAC from my perspective as GMA’s CEO as well as from my decades of experience as a city manager in Valdosta, Georgia. During each meeting, I described the challenges that local governments face in maintaining local rights of way; the need to preserve the integrity of our communities; and the need for local input into permitting process. Our committee recognized that one size does not fit all, and we created a model policy that gives fair compensation to local governments but also flexibility for the needs of industry. I have never heard a local official say they oppose bringing new technology to their residents and businesses, all they want is a reasonable opportunity to regulate the public right of way and protect the public’s health, safety, and quality of life . . .

5. GMA opposes any legislation or regulation that weakens the authority of Georgia’s municipalities to regulate the use of their public rights-of-way, and which diminishes their authority to locally determine appropriate compensation for such use. GMA supports a balanced approach to telecommunications policy that allows innovative technologies to flourish while preserving traditional local regulatory authority . . .

GMA does not believe this measure will result in increased availability of broadband for Georgians. GMA remains opposed to H.R. 3557.

H.R. 3557, entitled the “American Broadband Act of 2023,” represents an unprecedented and dangerous
usurpation of local governments’ authority to manage public rights-of-way and land use; it strips local
governments of property rights and monetary compensation in favor of cable, wireless and
telecommunications providers. The bill also waives historic preservation (NHPA) and environmental
(NEPA) rules. Yet in return for these gifts, the bill imposes no obligations on these companies to
provide broadband to “unserved” and “underserved” Americans.

H.R. 3557 should be opposed, [because the bill gives major concessions to Wireless Telecom and Cabie industries, while not obligating telecom and broadband providers to deliver broadband to “unserved” and “underserved” Americans.]

Wireless/Telecom: Usurps State & Local Government Police Powers & Property Rights

• Mandates that all wireless siting decisions be “deemed granted” if not acted upon by local
  governments within much shorter time periods than the federal government for similar projects
  government has 270 days to act, while locals must act in as few as 60 days.
• Provides no public safety protections for construction of “deemed granted” facilities. Sites will be
  constructed without any further action by the government, without notice to the government or
  obligation to comply with safety laws or traffic control.
• Empowers providers to install facilities where they choose regardless of local zoning, thus
  eliminating the ability of local government to balance providers’ and neighbors’ interests and
  jeopardizing the ability of local governments to impose stealth or concealment factors on
  installations.
• Limits all local fees to a locality’s objectively reasonable costs. Unlike current FCC rules and safe
  harbor pricing, localities must justify their fees using a complex, burdensome rate-making formula.
• Substitutes the FCC for local federal district court as a reviewing body for challenges to decisions,
  thus breaking promise made by Congress in 1996 that local governments would not be required to
  travel to Washington to defend local decisions.
• Imposes new and similarly flawed timelines and “deemed granted” remedies on applications for
  telecommunications facilities.

Cable: Removes Ability of State and Local Franchise Authorities to Enforce Franchises

• Eliminates cable franchise renewals, thereby removing the ability of state or local communities to
  enforce franchise obligations such as build-out, customer service, and local PEG Access channels.
• Grants a cable operator the unilateral right to terminate or modify a franchise but creates no
  obligation to remove a cable system from rights-of-way. This would eliminate cable franchise fees
  but allow operators to maintain other services. It would also allow operators to unilaterally
  eliminate provisions of contracts they deem commercially unfeasible.