Cable broadband operators are concerned that localities could start putting a thumb on the scale for Google Fiber when it comes to broadband service — making it a less-free market in which to compete for eyeballs and subscription dollars — and they want the Federal Communications Commission to nip that notion in the bud.

The current battleground over the extent to which municipalities can build out broadband is West Des Moines, Iowa. Incumbent provider Mediacom Communications wants the FCC to require the city to stop construction on Google Fiber‘s network, stop marketing service to residents and reconfigure the network and contract. 

Also Read: NCTA Says Google Fiber Definition of Competition Is Too Narrow

Opponents of the petition — comments were due Oct. 7 — said the FCC does not even have the authority to grant it.

Mediacom earlier this year asked the FCC to declare that the preferential treatment it says the city was extending to Google Fiber violated the Communications Act requirement that providers get nondiscriminatory access.

ACA Connects — the trade group representing Mediacom and other smaller, independent cable providers — filed comments in the proceeding saying preferential rates, terms and conditions obtained by Google Fiber clearly did not fit the competitively neutral directive of the Communications Act’s Section 253.

ACAC suggests the potential problem goes further than West Des Moines, and the commission needs to recognize that.

“[T]he FCC should recognize that the City’s alleged actions are of general concern to all providers regardless of location,” ACAC said in its comments. “Incumbent providers of telecommunications service and new entrants alike, including ACA Connects members, are concerned that actions by state or local governments in providing access to [public rights of way], including those like the City’s, may skew the market, such that they cannot compete in a fair and reasonable legal and regulatory environment as envisioned by Section 253.“

Muni Advocates Weigh In

Not surprisingly, Next Century Cities, which comprises advocates of municipal broadband service, filed in opposition to the Mediacom petition.

Next Century told the commission that Mediacom was trying “to prohibit a local government’s public-private partnership agreement that is designed to increase competition and expand broadband service options for residents.” It said the declaratory ruling would set the “negative precedent” that could discourage cities from forming public-private partnerships to close the digital divide.

Next Century was certainly suggesting ACAC‘s fear that not declaring such muni deals with Google Fiber violated the Act could encourage others was well-founded.

Also Read: More Muni, More Money

“Local officials nationwide are exploring opportunities to bring high-quality, affordable broadband within reach for residents and businesses,“ Next Century said. “These initiatives are often necessary, innovative, and community-driven, yet face numerous obstacles,“ including what it called "federal interference," and what ACAC would call the obstacle that favoring Google Fiber violates FCC rules.

But Next Century said that even if the FCC wanted to invalidate the Google Fiber deal, it gave up that authority when it reclassified broadband as an information service under Title I of the Communications Act. “Mediacom‘s complaint only pertains to the deployment and delivery of broadband Internet access service and does not affect the delivery of telecommunications services,” Next Century argued. “Therefore, the commission lacks authority to rule on this matter.”

Google Claims Mischaracterization

In its comments, Google said Mediacom‘s petition mischaracterizes its agreement with the city, which it says is not a grant of monopoly control of conduits; is not a subsidy to the company; grants it no special permitting or access rights; and is not on more favorable financial terms than other all-fiber ISPs.

Besides, the FCC has never been in the business of rewriting private contracts and should not start now, it said.

Among those filing in support of Google and West Des Moines were INCOMPAS, the National Association of Telecommunications Officers and Advisers (NATOA), the U.S. Conference of Mayors, and National League of Cities, among others.

INCOMPAS, whose members include Google, urged the FCC to deny the petition, saying West Des Moines was just trying to create an open conduit network that will provide fast, competitive fiber to residents throughout the city.

Municipal networks have a friend in the White House. President Joe Biden has signaled that he would favor targeting broadband subsidy money to municipal nets and public-private partnerships, which he has signaled equates to better and cheaper broadband service and cable broadband providers argue often leads to failed efforts and taxpayers holding the bag.

Over the objections of local government officials and the reservations of Democratic commissioner Jessica Rosenworcel, the FCC has voted to streamline the path to small cell deployment, billing it as crucial to the rollout of 5G wireless service, an FCC and Trump Administration priority.

Actually, the vote was at least partly unanimous, with the Republican commissioners approving and Democrat Jessica Rosenworcel approving in part and dissenting in part. She was all for speeding deployment, but saw the item as primarily a federal overreach that could slow, not speed, 5G.

Related: FCC's Rosenworcel Talks Up 6G

The item comprised a declaratory ruling combined with a Third Report and Order on wireless infrastructure.

The declaratory ruling limits state and local government fees for wireless infrastructure deployment to reasonable costs for processing applications and managing rights-of-way, including specific fee levels for small deployments. It also provides guidance on when an aesthetic or underground requirement, or other state or local regulation on deployment, is an effective prohibition on the service.

The Report and Order 1) establishes a shot clock for decisions on small wireless facilities (60 days for collocation on preexisting structures and 90 days for new builds), 2) codifies other existing shot clocks; 3) makes all state and local authorizations for deployment of personal wireless service subject to those clocks, and 4) concludes that a failure to make those shot-clock deadlines is a "presumptive prohibition on the provision of services."

FCC chair Ajit Pai (who had a 5G-regulations opinion piece in The Washington Post) called it removing "layers of (sometimes unnecessary and unreasonable) rules that prevent widespread deployment." He said many states have taken positive steps toward deployment, but signaled the rules were aimed at "outliers unreasonably standing in the way of wireless infrastructure deployment." So, he said, "today, we address regulatory barriers at the local level that are inconsistent with federal law."

Pai also said concluding that fees must be nondiscriminatory and cost-based was hardly a radical move.

Commissioner Brendan Carr, who championed the item, said the item would cut $2 billion in red tape, "which changes the prospects for communities that might otherwise be left behind" in the effort to close the digital divide. He called the item a tremendous step in the right direction.

Rosenworcel said she was all for speeding 5G deployments, but with cities and states as partners. To the degree that the item shortened the time frames for state and local reviews of small cells, she agreed with the FCC approach given that the longer time frames were designed for larger buildouts, rather than the small cells that are key to 5G.

But she said the rest of the item cuts states and localities out of the process. She said it was a case of the commission telling them which fees are permissible and which are not, what aesthetic choices they get to make, without regard for the fact that a one-size-fits-all approach doesn't work.

She called it extraordinary federal overreach, and likely illegal. "I don't believe the law permits Washington to run roughshod over state and local authority," she said. She said she worried the inevitable lawsuits would slow deployment.

She pointed out that the National Governors Association, the U.S. Conference of Mayors, the National League of Cities, the National Conference of State Legislatures, and others had all opposed the item. Industry stakeholder reviews were laudatory, while cities echoed their ongoing concerns.

Related: House Dems Seek Delay of FCC 5G Infrastructure Vote

"Today’s action by the Federal Communications Commission to accelerate small cell deployment is another critical step toward making our nation’s 5G future a reality, sooner than later," said Verizon chief network engineering officer, Nicola Palmer. "Today’s FCC order will significantly boost 5G deployment by adopting common-sense guidelines, modeled on state legislation, that reduce the time and cost of small cell deployments while accounting for legitimate local interests."

“5G is both the present and the future, and we must win the global race to next generation networks," said Chip Pickering, CEO of INCOMPAS, whose members include competitive carriers and tech companies. "This order is a big step forward for our national deployment agenda. We thank the Commission for its actions today towards achieving this goal."

Developers of the apps that will be relying on those network buildouts, were equally pleased.

“Today’s FCC approval to streamline rapid deployment of 5G is a huge step forward for American innovation and continued growth of the networked economy," said ACT-The App Association. "Just 10 years ago, wireless networks enabled app developers to completely reshape the way we live and work, growing an app economy that is currently valued at $950.6 billion and employs 4.7 million Americans."

“The FCC’s plan to cut red tape is a step in the right direction for ushering in our next era of innovation," said the Competitive Enterprise Institute. "Putting states and localities on a shot clock for approving 5G installments and capping fees charged to telecom companies at rates that compensate local governments for their troubles, but don’t allow them to extract a profit, will allow companies to complete deployment of this new infrastructure quickly and efficiently.

“Today, the FCC took the next step to further strengthen the United States’ lead in the race to 5G by adopting a framework for permitting and fees that will foster more widespread and robust infrastructure investment," said Joan Marsh, AT&T executive VP of regulatory and state external affairs. "Today’s order could not have happened without Commissioner Carr, whose leadership on this critical effort aligns with the tremendous work and foresight of state and local policymakers across the country. We are excited about our continued expansion of our small cell facilities to bring advanced wireless technologies and services to communities across the
country.”

"5G networks in America are key for powering the next generation of innovation, such as artificial intelligence and sensors in smart cities," said Michael Petricone, senior VP, government and regulatory affairs, for the Consumer Technology Association. "Today's vote to streamline small cell deployment helps keep America in the lead in the global race for 5G."

Others were seeing red and seeing it more along the lines of Rosenworcel's concerns.

Related: Cities to FCC: Stop Scapegoating Us on 5G Deployment

"The Order limits the ability of local governments to negotiate small cell deployments that are in the public interest and diminishes local decision making," said Next Century Cities. "The Order uses a false claim -- that big cities’ application and attachment fees burden wireless companies to the point that they cannot afford to build out in smaller communities -- to recommend annual fees far below the market rates. These low fees would create a de facto public subsidization of industry investment. Despite this, the Order neglects to include any actual obligation for wireless companies to use the savings in big cities to invest in rollouts in underserved low-income urban neighborhoods or smaller and rural communities. The FCC is just giving private wireless companies all of the benefits of a utility without any traditional public interest obligations."

“Today’s vote will likely chill and undermine the good faith work that states and wireless carriers are doing across the country to ensure the public has access to next-generation wireless and fixed wireless networks," said Phillip Berenbroick, senior policy counsel at Public Knowledge. "Instead, today’s action will assuredly lead to years of litigation between the Commission, local governments, and carriers, and ultimately delay, rather than speed, 5G deployment."

"With today’s vote, the FCC continues its race to the bottom on 5G," said Michael Copps, Common Cause special advisor and former FCC chairman. "By capping the fees state and local governments can charge, the FCC has decided to put the interests of a handful of telecom companies over local communities. State and local governments play a critical role in overseeing 5G deployment and that includes the ability to assess appropriate fees to attach infrastructure on public property."

“Cities and counties are strongly committed to the timely and successful deployment of 5G facilities and services throughout the nation, just as we led and supported public and private partnerships that resulted in the successful introduction and expansion of 4G infrastructure and services," said the National Association of Counties and the National League of Cities in a joint statement. “Today’s vote, however, overlooks significant concerns from the nation’s cities and counties. Over 100 local governments from 22 states filed comments in opposition to the proposed ruling during the FCC’s comment period.

“The FCC’s impractical actions will significantly impede local governments’ ability to serve as trustees of public property, safety and well-being. The decision will transfer significant local public resources to private companies, without securing any guarantee of public benefit in return."

“The U.S. Conference of Mayors conveys its strongest opposition to today’s final Order issued by the Federal Communications Commission," said conference executive director Tom Cochran. "While The U.S. Conference of Mayors supports the nation’s efforts to win the race to 5G, today’s FCC action misapplies federal law to federalize local public property as part of its efforts to bestow upon a class of private companies special rights to access local rights-of-ways and public property.“Despite efforts by local and state governments, including scores of commenters in the agency’s docket, the Commission has embarked on an unprecedented federal intrusion into local (and state) government property rights that will have substantial and continuing adverse impacts on cities and their taxpayers, including reduced funding for essential local government services, and needlessly introduce increased risk of right-of-way and other public safety hazards.

As if there were any doubt, Google and its policy allies will continue to push their vision for Smart Cities with a focus on education and health applications during the coming years. Rural plus small-town deployment will remain a centerpiece of their political efforts.

At a Next Century Cities (NCC) program in Washington on Wednesday morning (Nov. 30), bipartisan speakers extolled broadband's value and some, such as Sen. Amy Klobuchar (D-Minn.), a member of the Senate Commerce and Judiciary committees, indicated plans to keep their agenda alive no matter what policy barriers lie ahead.

"Transforming Communities: Broadband Goals for 2017 and Beyond," the title of the event, was sponsored by Google Fiber, the Ford Foundation, Internet2 and Harrison Edwards (a Westchester, N.Y., public relations firm that represents many non-profit/educational institutions). The program (watch a video) was held at Google's Washington office.

In prepared remarks Klobuchar said, “Everyone, from the farmers in rural Minnesota to those in our towns and cities, must be able to log on and participate in this new digital economy.”

Sen. Angus King (I-Maine), a member of the Rules and Budget committees, described high-speed broadband's capability to enable people "whether they live in rural Maine or New York City, to realize unprecedented economic, educational and cultural opportunities."

"That’s why today’s event, which brought together a bipartisan coalition of voices to champion how broadband can transform our communities, is so vitally important," King said in prepared remarks.

Sen. John Boozman (R-Ark.), who sits on the Senate Appropriations and Rules committees, observed: "Broadband is a vital component to our nation’s 21st century infrastructure and our federal policies must reflect this. Right now, a digital divide exists between rural and metropolitan areas which we must overcome.”

The Schools, Health & Libraries Broadband (SHLB) Coalition and US Ignite, which supports next-generation Internet applications, co-hosted the event. Other speakers included several mayors, school and library administrators plus familiar broadband cheerleaders such as Harvard Law professor Susan Crawford; Gigi Sohn, the outgoing counselor to FCC chairman Tom Wheeler; and Brookings Institute senior fellow Blair Levin.

The NCC characterized its event as a way to examine "key policy goals and needs for the next administration, and the program also included demonstrations of "innovative civic applications enabled through gigabit technology."

Counting 150 cities among its membership, the NCC characterizes itself with a Google-friendly description as an organization that "recognize[s] the importance of leveraging gigabit-level Internet to attract new businesses and create jobs, improve health care and education, and connect residents to new opportunities."

NCC executive director Deb Socia summarized the event's objective as a way to examine "how all levels of government can work together to continue broadband efforts in communities nationwide and build on these transformative achievements.”

The underlying message of this NCC initiative, which notably did not include cable organizations, is that the broadband battle will continue, with powerful forces continuing to seek dominant roles. Wednesday's event was one in a long series of think-tank and astroturf lobbying programs in Washington during the coming weeks as soothsayers imagine what the next Congress and Administration will wreak.

Next Century Cities, an initiative billing itself as a bipartisan effort “dedicated to ensuring the availability of next-generation broadband Internet for all communities," launched Monday  with 32 cities on board.

The coalition is banding together after two cities – Chattanooga, Tenn., and Wilson, N.C., issued requests to the FCC to preempt state laws restricting their ability to provide broadband service. FCC chairman Tom Wheeler has signaled that he wants to use the FCC’s power to prempt what he believes are efforts by incumbent ISPs to block municipal broadband via advocating for those restrictive state laws. In response, a group of dozen Republican senators expressed concerns about Wheeler’s plan, holding that it’s a state's rights issue.

Next Century Cities, launched Monday at an event in Santa Monica that included a video message from Wheeler, said its partnership cities and their elected leaders are coming together to “recognize the importance of leveraging gigabit-level Internet to attract new businesses and create jobs, improve health care and education, and connect residents to new opportunities.”

Next Century Cities said it will engage with and assist communities in developing and deploying next-generation broadband Internet, with participating cities agreeing to share information on what works and what does not.

Next Century Cities, set up as a project of New Venture Fund, a 501(c)(3) public charity, notes on its Web site that it is supported by a group of donors that includes the Ford Foundation, the John S. and James L. Knight Foundation, the Open Society Foundations, and Google.

Next Century Cities on Monday announced the following 32 cities as inaugural partners:

-Ammon, Idaho

-Auburn, Ind.

-Austin, Texas

-Boston, Mass.

-Centennial, Colo.

-Champaign, Ill.

-Chattanooga, Tenn.

-Clarksville, Tenn.

- Jackson, Tenn.

-Kansas City, Kan.

-Kansas City, Mo.

-Lafayette, La.

-Lexington, Ky.

-Leverett, Mass.

-Louisville, Ky.

-Montrose, Colo.

-Morristown, Tenn.

-Mount Vernon, Wash.

-Palo Alto, Calif.

-Ponca City, Okla.

-Portland, Ore.

-Raleigh, N.C.

-Rockport, Maine

-San Antonio, Texas

-Sandy, Ore.

-Santa Cruz County, Calif.

-Santa Monica, Calif.

-South Portland, Maine

-Urbana, Ill.

-Westminster, Md.

-Wilson, N.C.

-Winthrop, Minn.