NATOA Contributes to the Success of JAG Conference

by Mike Lynch, Legislative & Regulatory Affairs Director, NATOA

Thank you, Jersey Access Group, for inviting me to participate in the 2023 Conference!  On behalf of the National Association of Telecommunications Officers and Advisors (NATOA), I’ve got to tell you….I had a blast!  You’re a dynamic organization with great leadership from folks like Bob Duthaler, Stephanie Gibbons, Dave Garb, Don Smith and, of course, Rich Desimone.  To Rich: Thanks for your years of collaboration and teamwork as both NATOA and JAG moved forward in the ever-changing world of cable & broadband.

Thank you to Piscataway Mayor Brian Wahler for guiding our conversation with Mike Wassenaar, CEO of the Alliance for Community Media, Robert Boyle, CEO of Planet Networks and Marilyn Davis, Senior Director of Government Affairs for Altice, as we discussed all things related to broadband funding.  And, thank you to Valarry Bullard, Director of the newly created Broadband Office in the New Jersey Board of Public Utilities (NJBPU) for participating.

I don’t know if folks remember, but Mayor Wahler has a longstanding connection with NATOA going back to 2014, when NATOA conferred our most valued honor, the Jane E. Lawton Commemorative Award on Mayor Wahler for all his good work in New Jersey advocating for local PEG, cable and broadband issues.  Named in memory of the Honorable Jane E. Lawton, a past president of NATOA and former Special Assistant to the Speaker of the United States House of Representatives Carl Albert, for her career-long efforts to promote community interests in communications, the Award recognizes the work of individuals who stand out for their communities on PEG and broadband advocacy.  Thank you, Mayor Wahler for your continued good work.

The Jersey Access Group has a great & strong history of activism on PEG, cable and broadband issues and we’re so appreciative of the long-standing partnership with NATOA.

You know, the day before your Conference, the House Energy & Commerce’s Communications and Technology Subcommittee held a Markup Hearing that was tough to watch and listen to as an advocate for local government on telecom matters and PEG operations, given the rigid party line conduct and anti-localism flavor of attacks.  The markup hearing of 19 bills ultimately morphed into a single bill, H.R. 3557, the American Broadband Deployment Act of 2023.  H.R. 3557 passed along party lines and aimed to harm local governments’ public rights-of-way authority and risks the future of cable franchising and PEG operations.

The Subcommittee combined most of the bills that impact local governments into this single measure and was approved by a party line vote.  As approved by the Subcommittee, the bill would:

  • Allow cable franchisees to unilaterally modify the terms/ requirements in franchise agreements
  • Prohibit state and local governments from revoking cable franchises
  • Preempt state and local zoning authority over the placement of cell phone towers and equipment
  • Eliminate state and local government authority to manage public rights-of-way and collect fair market compensation for their use and management
  • Require local government approval of modifications to existing cell phone towers
  • Preempt state and local zoning authority over the placement of cable equipment

A week later — and with little notice and with no opportunity for local governments to address the bill before the subcommittee — the Energy & Commerce Committee passed H.R. 3557 along party lines.

In a letter to Committee leadership, the U.S. Conference of Mayors, the National League of Cities, the National Association of Counties and the National Association of Telecommunications Officers and Advisors said:

“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. Congress has historically recognized these rights in Sections 224, 253 and 332 of the Telecommunications Act.

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.”

(See–streamlining-permitting-to-expedite-broadband-deployment- )

Congressman Frank Pallone (D NJ-6) and Committee Ranking Member valiantly offered an Amendment to oppose HR 3557 and any action to approve it.  Congressman Pallone said:

“To remove arbitrary deadlines and narrow timeframes in this bill that preempt local governments’ authority and ability to make decision that best meet the needs and best interest.  That’s why these ‘deemed granted’ provisions that Republicans are rushing through are, I think, a bad process and are troubling to me and to the local elected officials in the towns we represent. 

HR 3557 would enact narrow and arbitrary timeframes to approve or deny applications and then ‘deem them granted’ if a decision hasn’t been made by that time.  Now to be clear, if a local planning board or town council is reviewing a project and does not approve it be a deadline set by House Republicans, the applicant’s proposal would automatically be considered approved w/o any further input from the community. 

I have serious concerns that this approach raises mor Q’s than answers especially when it comes to liability in the case of public safety and accidents.  The reality is, no matter where you go in this country, local governments have an important role to play in approving construction projects. 

My Republican colleagues like to demonize local governments for not approving projects in the amount of time they would like.  But, this bill does nothing to address a major concern that was raised by all the witnesses that was raised at the legislative hearing on this topic. And that is the lack of qualified personnel to process these applications, particularly in smaller towns and counties.  Instead, they would wave their wand and approve these applications without further process.

Now, anyone who has served at the local level, and I have – (Long Branch, NJ city council, 1982-88) – there is a lot more to these decisions than simply yes or no.  In many cases, there are negotiations between towns and counties with telecommunications provider for access to Rights of Way or other publicly owned areas.  In other words, if a municipal planning board or zoning board is reviewing an application and does not issue an approval by a deadline set by House Republicans, the applicant’s proposal would automatically be considered approved w/o any further input from the community.

And, I’m most concerned that this approach raises more questions than answers, especially when it comes to liability in the case of accidents.    And, my Republican colleagues like to demonize local governments who are not approving applications as quickly as they would like.

This ‘one size fits all’ mandate to approve a project in 2 months weakens a town’s ability to get the job done right while at the same time ignoring the reality of many local governments’ calendars.  People who serve in town and county government are public servants who are accountable to the people who live in those communities.  They are responsible for acting in their best interests, especially as it pertains to utilities and service in a county or town. 

No one thinks about who’s responsible for ensuring your safety – for example, police or fire or traffic duty– for ensuring the safety of the public and the workers during construction.  Or, the complexity of scheduling certain construction projects to avoid road closures or other disruption or delays that often and do occur as a result.  It’s the Mayors, and councils and zoning boards who are responsible for these considerations.  And, they’re ‘on the hook’ if anything goes wrong or someone gets hurt.  And, perhaps, that is why we received a letter today form the Georgia Municipal Association, which represents all 537 municipalities in the bill sponsor’s home state. 

They strongly oppose this bill.  And, I would ask you now for unanimous consent to submit this letter for the record. 

I have great respect for my friend from Georgia.  He knows how much I love that state.  But I’m struggling to understand how his constituents – and mine – are served well by these proposals because the ‘deemed granted’ proposals aren’t the only areas where this legislation removes critical local authority.  At best, these proposals remove local leverage to negotiate the specifics of these projects that can best serve the people of these communities.  At worst, they can put people at risk.  Those of us who work closely with our mayors and councils – and I think that’s everyone on the dais here – we know that they are the first ones to step up when it comes to deploying communications infrastructure in their towns. 

What possible advantage would come from deliberately ignoring or delaying requests to improve work that would improve services for their constituents?   

So, last week, I challenged my Republican colleagues to tell their mayors that they voted for this bill the next time they went home and see what they say.  So, when I went home this weekend & I asked the mayors and I was glad not to be on the record supporting this bill.  I would encourage my colleagues on the other side of the aisle and to go back to the drawing board and work with some Democrats in a productive way to develop some bills that might actually get signed into law.  It’s not as though Democrats are not trying to look for ways to enacts permitting reform bills that do not trample on these protections. 

But so far, the Republicans have said no.  So, I urge all of my colleagues on both sides of the aisle to preserve local authority and vote “Yes” on the amendment.”

You’ll find HR 3557 and the amendments discussed about 2:30 pm – 4 ½ hours into the hearing:

Congressman Pallone did a great job advocating for local government and PEG operations.  New Jersey and JAG should be very proud of your representation in Congress.

H.R. 3557 is called the American Broadband Deployment Act of 2023 but it should really be called the “Great American Give-away” to cable, broadband and wireless operators.  The bill suggests it will streamline permitting to increase broadband availability.  Instead, it eliminates local and state rights in broadband deployment, wireless sittings and cable franchising to benefit these companies without getting anything for the public in return.  There is no ‘quid pro quo’ that the cable, broadband and wireless companies will build out or serve those that need to be served.

H.R. 3557 is bad for local communities and for PEG operations.  The bill has moved too quickly through the Committee and will likely soon move through the full House.  There is no companion bill in the Senate.

If you can, please communicate to your Members of Congress that: Neither state nor local governments were even provided an opportunity to address these bills, now collapsed into one bill as HR 3557, at the subcommittee level. 

Best to all!

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National Association of Telecommunications Officers and Advisors (NATOA)