By Michael C Compo, Esq.

Twenty-two years after the passage of The Telecommunication Act of 1996 (TCA), the legislature and the FCC have piecemealed together some semblance of the regulatory framework to promote the advancement of broadband access across the United States.  However, they haven’t gone far enough to create enforceable laws applicable to Federal Agencies.  Without these enforceable laws the Federal Agencies use unbridled discretion to deny telecommunications and small cell provider’s access to Federal Property designated as a telecommunications facilities.

Section 706 of the Telecommunications Act of 1996 requires the Federal Communications Commission to report annually on whether advanced telecommunications capability “is being deployed to all Americans in a reasonable and timely fashion,” and to take “immediate action” if it is not.  The 2018 Broadband Deployment Report indicates that as of year-end 2016, 92.3% of all Americans have access to fixed terrestrial broadband at speeds of 25 Mbps/3 Mbps, up from 89.4% in 2014 and 81.2% in 2012. Nonetheless, over 24 million Americans still lack fixed terrestrial broadband at speeds of 25 Mbps/3 Mbps. Rural and Tribal areas continue to lag behind urban areas in mobile broadband deployment. Although evaluated urban areas saw an increase of 10 Mbps/3 Mbps mobile LTE from 81.9% in 2014 to 90.5 % in 2016, such deployment in evaluated rural and Tribal areas remained flat at about 70% and 64%, respectively. Approximately 14 million rural Americans and 1.2 million Americans living on Tribal lands still lack mobile LTE broadband at speeds of 10 Mbps/3 Mbps.

Federal agencies such as Bureau of Land (BLM) and United States Forest Service (USFS) have taken a hardline approach to denying telecommunications providers access to designated telecommunication’s sites in the federal public right of way (PROW).  The Telecommunication Act of 1996 Section 704(c) (TCA) allows for Federal Agencies to make available on a fair, reasonable, and nondiscriminatory basis, property, rights-of-way, and easements under their control for the placement of new telecommunications services that are dependent, in whole or in part, upon the utilization of Federal spectrum rights for the transmission or reception of such services. The goal of the overhauled act was to let anyone enter the communications business and to let any communications business compete in any market against any other. One of the means by which Congress sought to accomplish these goals was the reduction of the impediments imposed by Federal, State and Local governments through TCA Section 704(c).  Under TCA Section 704(c), the procedures, established by the President or his designee, may establish a presumption that the requests for the use of property, rights-of-way, and easements by duly authorized providers should be granted. Executive Orders 13616 and 13821 have addressed the presumption and expounded on the necessity to provide equal access to federal property and right-of ways to telecommunication providers.  Despite Federal policy and law supporting access to PROW, these agencies misuse their discretionary authority to prevent telecommunication providers, like NMSurf, from gaining access and providing badly needed service to rural areas.

The problem with TCA Section 704(c) is the lack of mandatory language and enforcement provision within the frame work of the law.  Although section 704(c), executive orders 13616 and 13821 direct Federal Agencies to make available federal right of ways to telecommunications providers they do not provide remedies to telecommunications providers when Federal Agencies don’t comply with the law.

Pub. L. 104–104, title VII, § 704(c), Feb. 8, 1996, 110 Stat. 152, provided that:

“Within 180 days of the enactment of this Act [Feb. 8, 1996], the President or his designee shall prescribe procedures by which Federal departments and agencies may make available on a fair, reasonable, and nondiscriminatory basis, property, rights-of-way, and easements under their control for the placement of new telecommunications services that are dependent, in whole or in part, upon the utilization of Federal spectrum rights for the transmission or reception of such services. These procedures may establish a presumption that requests for the use of property, rights-of-way, and easements by duly authorized providers should be granted absent unavoidable direct conflict with the department or agency’s mission, or the current or planned use of the property, rights-of-way, and easements in question. Reasonable fees may be charged to providers of such telecommunications services for use of property, rights-of-way, and easements. The Commission shall provide technical support to States to encourage them to make property, rights-of-way, and easements under their jurisdiction available for such purposes.”

 

Although this language seems straight forward with the mandatory requirement of the prescription of procedure by the President or his designee, the procedures only permissively allow a presumption that a request for use of the property should be granted.  The exception to this is an unavoidable direct conflict with the department or agency’s mission, or the current or planned use of the property, rights-of-way, and easements.  In NMSurf’s application to place its own facility in the federal right-of-way, the USFS hung their hat on this exception relying on their management standards to maximize joint use of existing facilities to deny NMSurf access to place its own telecommunications facility in the federal right-of-way.  The USFS also relied on its exclusive agreement with a private tower company as a basis for denial.

The legislative history of the TCA evidences a competitive objective, to provide for a pro-competitive, de-regulatory, national policy framework designed to accelerate rapidly private sector deployment of advanced telecommunications and information technologies and services to all Americans by opening all telecommunications markets to competition.   The USFS denial of access to NMSurf and it’s entering into exclusive agreements with private companies for access to Federal right-of -way goes against the general grain of the TCA competitive objective, is discriminatory and not competitively neutral.

Although arguably a cause of action can be asserted under the Administrative Procedure Act (APA) against the USFS, the standard for such an action is a very low standard of arbitrary and capricious.  In other words, no teeth.  The legislature needs to make the Federal Agencies accountable just as they make State and local agencies accountable.  Not only would a deemed grant be a welcomed remedy for Federal Agency foot dragging, but also a law that reduces the discretionary authority of the Federal Agency to a very low threshold and creates a palpable cause of action against the Federal Agency if they violate either one.