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ACA: FCC Prevent Gatekeepers From Impeding Acces To Rights Of Way

The American Cable Association called on the Federal Communications Commission to take firm action against public and private entities that impede broadband deployment by demanding excessive fees to access rights of way or taking unacceptably long amounts of time to process necessary forms and applications, causing frustrating delays and adding substantially to costs.

"The need for an FCC response is crucial because ACA members have identified many restrictions, delays, excessive fees and competitively discriminatory policies imposed by private and public entities when seeking to extend service to new communities," ACA President and CEO Matthew M. Polka said. "ACA members face real problems that the FCC needs to address, including unfair, unreasonable and discriminatory treatment at the hands of inhospitable gatekeepers."

ACA filed comments Sept. 30 with the FCC to highlight numerous barriers facing independent companies that either prevent or significantly increase the cost of broadband deployment in rural communities. In its comments, ACA included sworn declarations from its members that illustrated many of the impediments that small and medium-sized providers are facing in attempting to connect hometown America to the fastest broadband services available.

"ACA members are always looking for opportunities in the market to invest their own money in deploying broadband in unserved areas and in areas that would provide consumers with another competitive choice.  However, these opportunities for private investment in broadband deployment are far too often delayed or derailed due to the inability of ACA members to receive necessary rights of way on reasonable terms," Polka said.

ACA's comments underscored the need for FCC intervention because ACA members lack the financial scale to absorb excessive fees or the time needed to accommodate the dilatory tactics of private and government actors that exercise monopoly control over rights of way as well as highway and railroad crossings.

"ACA members are particularly vulnerable to unfair, unreasonable and discriminatory treatment because they are generally smaller companies without access to armies of attorneys and consultants to assist in their navigation of the patchwork of requirements necessary to install high-speed broadband lines to new communities and provide competitive broadband alternatives for American consumers," Polka said.

By way of example, Sierra Nevada Communications (SNC) is seeking to provide high-speed, wireline broadband service to the 5,000 residents of Long Barn, Cold Springs and Pinecrest/Strawberry, towns in or bordering California's Stanislaus National Forest.  SNC is unable to provide high-speed broadband Internet service in these areas without approval by the U.S. Forest Service.  SNC's application has been pending approval for seven years.


In another instance, ACA documented that the Indiana Department of Transportation (IDOT) refused to allow cable operator WOW! to access the right of way along U.S. Highway 41 to run fiber lines to 1,900 potential customers in the rural communities of Haubstadt and Fort Branch.  Though WOW! could seek an IDOT waiver, the cable company expects a lengthy application process inconsistent with prudent business planning.  Meanwhile, private easements, if obtainable, are expensive, putting new providers at a cost disadvantage to competitors able to use incumbency status to access government-controlled rights of way.

Regarding the cost of access, ACA member Eagle Communications is facing arbitrary and excessive fees from both the Union Pacific and Burlington Northern Santa Fe (BNSF) railroads when seeking to cross their rights of way. ACA members have also been asked to pay excessive fees by state and local governments, utility pole owners and the U.S. Army Corps of Engineers.

In its comments, ACA urged the FCC to use the rulemaking to invalidate state and local rights of way management requirements and fees that are not fair and reasonable and not competitively neutral and nondiscriminatory.  FCC authority to act rests in Sec. 253 of the Telecommunications Act of 1996, which states that no state or local statute or regulation may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.

Although federal law allows states and localities to manage the public rights of way and receive fair and reasonable compensation, ACA said the FCC should adopt a rule that deems fees unreasonable to the extent they exceed amounts that would recover administrative or other specifically identifiable costs.

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