Business teams USTelecom and NTCA–The Rural Broadband Affiliation are backing a request from fiber operator Lumos for the FCC to override some allowing charges and necessities imposed by Stark and Mahoning counties in Ohio.
However the County Engineers Affiliation of Ohio (CEAO) is urging the FCC to train warning in its choice making, whereas the counties themselves argue that Lumos’ claims misrepresent the state of affairs.
The petition in query was initially filed by Lumos in June, claiming that the counties’ allowing charges and necessities for fiber buildout initiatives violate part 253 of the Communications Act by erecting obstacles to deployment. Based on Lumos, these prohibitive necessities pressured it to desert fiber builds set to serve roughly 200,000 properties and companies within the Ohio counties.
“Compliance with the challenged necessities would have elevated Lumos’s whole mission prices by roughly 50% in Stark County rights-of-way, representing a staggering 23% of Lumos’s anticipated mission revenues within the County over the subsequent 5 years,” states the petition from Lumos.
Based on Lumos, Stark County requires that Lumos submit a plan stamped by an expert surveyor, that it pay a $1 price for each foot of fiber deployed inside the right-of-way, and that Lumos fund common inspections carried out by a county engineer.
In Mahoning County, mentioned Lumos, the supplier is required to have all of its plans ready and authorized by a state-licensed engineer and authorized by an expert surveyor.
“Preemption is definitely warranted right here. Lumos has confronted precisely the type of native obstacles Part 253 was designed to stop: extreme right-of-way charges, unreasonable and uncapped inspection costs, and sweeping non-fee necessities,” argued Lumos in its petition.
The corporate added that the necessities in query had been imposed in a “discriminatory” method: “Based mostly on Lumos’s overview of public allowing data, Stark County imposed none of those necessities on different suppliers, and Mahoning County equally singles out the primary new deployer for surveying obligations. Furthermore, Stark County didn’t embrace any of the necessities on its public schedules till after Lumos utilized for its preliminary permits—and nonetheless has not printed the per-foot price in any respect,” claimed the petition.
In a July weblog submit from Lumos explaining its choice to petition the FCC on the matter, the corporate mentioned that “greater than a 12 months was spent working with county officers in an effort to discover a sensible path ahead” earlier than submitting the petition; nevertheless, “these efforts didn’t produce a workable answer.”
Larger struggle
With this petition, Lumos additionally seems to be seeking to assist advance an trade goal to get the FCC to make use of its authority to preempt native allowing rules extra broadly. Telecom teams together with USTelecom and ACA Connects final 12 months urged the FCC to just do that in response to a discover of inquiry (NOI) on how the FCC can use its part 253 authority to cut back obstacles to wireline deployment.
Lumos gave a nod to the bigger struggle afoot in its weblog submit:
“Basically, this case just isn’t about Lumos. It’s about whether or not native governments should permit customers and communities to have entry to aggressive choices. Federal regulation requires that they have to,” wrote Lumos. “Congress addressed this concern immediately in Part 253 of the Communications Act, which bars state and native necessities that ‘prohibit or have the impact of prohibiting’ the availability of telecommunications companies,” the corporate added.
In feedback filed to the FCC this week, each USTelecom and NTCA–The Rural Broadband Affiliation threw their help behind Lumos’ petition, citing the bigger implications of the FCC’s choice.
“NTCA helps localities’ proper to recoup the cheap prices they incur in managing public rights-of-way (‘RoWs’) and to determine sensible development coordination necessities that defend public amenities/streets and different utilities (fiber included) which will already be current within the space in query. But the charges and different necessities described within the Petition go nicely past what is affordable and what’s usually required by state and native governments,” argued NTCA in an FCC submitting on August 24. “They’re so burdensome that NTCA agrees that they can’t be squared with Part 253(a) as they’ve triggered Petitioner to desert their deployment plans. Ought to the Fee fail to behave, it can ship a sign to localities that such necessities are permissible below the regulation.”
USTelecom additionally pointed to Lumos’ abandoning of the initiatives as proof that the pole attachment necessities had been unlawfully prohibitive in response to part 253.
“The Petition describes native allowing necessities that pressured Lumos to cancel deliberate fiber deployments in Stark and Mahoning Counties, Ohio—stranding greater than $1.4 million in engineering prices and leaving roughly 200,000 Ohio households and companies with out entry to aggressive telecommunications companies,” mentioned USTelecom in its submitting. “Congress enacted Part 253 of the Act to stop exactly one of these consequence. Due to this fact, the Fee ought to promptly grant the Petition and preempt the challenged necessities to the extent essential to take away these illegal obstacles to wired infrastructure deployment.”
Along with the telecom teams, Lumos’ petition additionally received help from its partial proprietor, T-Cell, which acquired Lumos in a 50/50 three way partnership with non-public fairness agency EQT final 12 months.
“T-Cell has a direct curiosity on this continuing, which displays the evolution of our enterprise,” acknowledged the firm’s submitting. “…the illegal charges, costs, and inspection necessities imposed by Stark and Mahoning Counties have already pressured Lumos to cancel deliberate fiber deployments in these counties—which means that roughly 200,000 Ohio households and companies is not going to have entry to Lumos’s fiber community. And since T-Cell’s fiber service is delivered by means of Lumos’s community, its incapacity to deploy means T-Cell Fiber is unable to serve these clients.”
‘Warning and restraint’
However Lumos’ petition is getting pushback from native forces. In a submitting this week, the County Engineers Affiliation of Ohio (CEAO) urged the FCC to train warning in its choice making.
“CEAO doesn’t characterize Stark County or Mahoning County on this continuing, and CEAO takes no place on the particular price schedules, price quantities, disclosure practices, or particular person allowing choices described within the Petition. These issues are being addressed by the counties immediately,” the group wrote.
“As a substitute, CEAO writes for a restricted objective: to warning the Fee in opposition to any ruling that – nevertheless tailor-made to the disputes earlier than it – would inadvertently name into query the authority of Ohio’s counties to require the skilled engineering and survey overview mandatory to guard the general public and the opposite utilities that share the ROW, or to gather fairly associated charges essential to effectuate that safety,” CEAO added.
The submitting goes on to debunk claims in Lumos’ petition that underground fiber deployment presents “actually no floor disturbance” and factors to the bodily dangers introduced by fiber deployers, together with Lumos.
“Certainly, primarily based on information stories, ‘Lumos Networks’ is known by CEAO to be amongst or associated to fiber installers chargeable for a number of latest catastrophic utility strikes in northeast Ohio (Trumbull County),” added CEAO in its submitting, pointing to native reporting.
In flip, reasonably than use this event to concern a “broadly worded ruling” that may attain “far past the 2 counties,” CEAO is asking the FCC to slender its scope to Lumos’ particular complaints.
“CEAO respectfully urges the Fee to train warning and restraint,” mentioned the engineers affiliation in its submitting. “Particularly, CEAO asks that any reduction the Fee would possibly grant be narrowly restricted to the particular price buildings or procedures truly discovered illegal (if any), and that the Fee expressly verify that its ruling doesn’t disturb the authority of native governments to require cheap, professionally licensed engineering and survey overview, and cheap inspection, in furtherance of the secure, shared use of the general public rights-of-way.
“In that case restricted, any potential treatment can deal with the events’ dispute with out stripping counties of the instruments they should forestall the subsequent utility strike,” added CEAO.
Counties cry foul
For his or her half, although, each Stark and Mahoning counties filed joint oppositional feedback disputing a number of of Lumos’ claims and urging the FCC to “dismiss or deny” the corporate’s petition.
The counties additionally famous that the FCC has “no jurisdiction” to grant Lumos’ requests.
“However even when it did, Lumos misrepresents most of the Counties’ right-of-way administration necessities and, in consequence, falsely portrays them as illegal obstacles to broadband deployment,” the counties’ submitting added. “Lumos additionally improperly belittles each Counties’ duty to soundly handle facility work inside their rights-of-way and overlooks its personal function in inflicting the delays and prices it now attributes to the Counties.”
The counties’ submitting as a substitute alleged that Lumos “repeatedly delayed its personal allowing course of” and allowed “two months to go earlier than responding to Stark’s efforts to proceed coordinating the mission” when discussions started in 2024.
The Ohio counties additionally disputed Lumos’ claims about charges, stating that the corporate’s petition cites charges that had been by no means imposed and exaggerated surveyor price estimations.
“Stark has no ‘per foot development price,’ a lot much less a greenback per foot price. That Stark was contemplating such a price was talked about at one assembly with Lumos, but it surely was by no means adopted or imposed, and that’s the reason it was by no means publicly disclosed on any software kind or on the County’s web site … The story in Mahoning is far the identical. The County imposes no per-foot right-of-way price. All of its charges are price restoration charges,” acknowledged the submitting from Stark and Mahoning.
“On all or any of those a number of grounds, the Fee should deny Lumos’s Petition,” the counties added.
