On August 13, 2021, the Wireline Competition Bureau released a Public Notice setting comment deadlines for two petitions for declaratory ruling. Both petitions seek declaratory rulings pursuant to Section 253 of the Communications Act, which prohibits state and local governments from passing any law or regulation which would prohibit or have the effect of prohibiting an entity from providing telecommunications service. These two petitions are some of the first to be filed challenging a state or local statute or regulation pursuant to Section 253 since the FCC’s Small Cell, Moratoria, and One-Touch Make-Ready orders were challenged, and largely upheld, in both the 9th Circuit and 5th Circuit Courts of Appeals.
First, on May 10, 2021, Missouri Network Alliance, LLC d/b/a Bluebird Network (“Bluebird”) filed a Petition for Declaratory Ruling (WC Docket No. 21-323) asking the FCC to preempt a linear foot fee charged by Columbia, Missouri for use of its rights of way (“ROW fee”). Bluebird argues that the City’s ROW fee violates Section 253 in three ways: 1) the fees are prohibitory because of their size ($1.91 per linear foot with no cap) in relation to Bluebird’s anticipated revenue for their planned network; 2) the fees are discriminatory because other telecommunications carriers pay fees to the city based on service revenue, which Bluebird argues “materially inhibit[s] Bluebird from competing in a fair and balanced regulatory fashion;” and 3) the ROW fees bear no relation to the cost to Columbia for managing the ROW, particularly because the ROW fee includes costs associated with permit related reviews and inspections, repairs and restoration of the ROW as well as all streets and roads, and calls the ROW fees annual rent.
Second, on May 12, 2021, MCC Iowa LLC (“Mediacom”) filed a Petition for Declaratory Ruling (WC Docket No. 21-217) seeking review of City of West Des Moines’ contract with Google Fiber. Mediacom argues that the contract violates Section 253 in three ways: 1) the City is effectively providing Google Fiber with a large, exclusive subsidy by bearing the cost for building out and maintaining for the underground conduit and vaults for the fiber, while only charging minimal fees to Google Fiber; 2) the City has granted Google Fiber exclusive ROW access rights by granting Google Fiber the exclusive right to utilize the network for 18 months after it is completed; and 3) the contract prohibits competition because Google Fiber has been granted the right to design the network, which is being done in such a manner that any provider who is not Google Fiber is barred from utilizing the network.
Comments on the petitions are due on or before September 22, 2021; reply comments are due on or before October 12, 2021.
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