International Municipal Lawyers Association - Local Government Blog


May 15, 2009
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Posted By: Nick Miller, Partner, Miller & Van Eaton

The Congress approved a delay in the Digital Television Conversion from February until June 12, 2009.  This additional time has allowed the Federal Communications Commission and the Department of Commerce’s National Telecommunications and Information Administration to enhance and restructure the federal government’s consumer outreach programs.

Among the good news items:

  1. The backlog for federal discount coupons for DTV converters is gone.
  2. The agencies have recruited fire departments and community organizations throughout the nation to assist homebound and vulnerable citizens.
  3. The agencies have improved call centers and help lines.
  4. The broadcasters are doing more to inform and to demonstrate to individual consumers whether the new over-the-air digital signals will be available without improved antenna arrays.
  5. Many broadcasters are converting ahead of June 12, providing real experience for the call centers and outreach agencies.

The story is not over—but the trends are finally positive. 

And please do your part by sharing this Consumers’ Union public education package with your electeds, agencies and local media: CLICK HERE for the PDF


January 28, 2009
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Posted By:  Adrian Herbst, The Baller Herbst Law Group, P.C.

On Monday, January 26, 2009 HR 1 was introduced to the 111th Congress. This Bill as an Act is cited as the “American Recovery and Reinvestment Act of 2009” (“Act”). For the full text connect to:  For a summary of the broadband portion of the Act prepared by the Committee on Energy and Commerce, connect to:  Although the Act contains numerous provisions, with over 650 pages, and titles of importance to state and local governments, this article briefly describes the part of the Act which provides for broadband stimulus, including $6 billion for infrastructure development. 

The National Telecommunications and Information Administration (“NTIA”) is directed to create a national “broadband inventory map” that identifies the geographic extent to which broadband service capability is available.  In addition, it includes the requirement that the NTIA establish “wireless and broadband grant programs.”  The purpose is to provide for a comprehensive nation‑wide inventory of existing broadband and to establish grants that will stimulate the development of broadband infrastructure for economic development and the availability of wired and wireless broadband throughout the country.  The needs and priorities will be identified by each state and at least one grant must be available in each state.  The following provides a brief summary of grant funding and purposes:


·        Grants will be available for rural open access broadband with 50% to be awarded no later than September 30, 2009. 

·        Grants for wireless deployment and broadband deployment for the development of basic broadband service and advanced broadband service capabilities. 

·        Grants to fund state broadband tracking initiatives; with the NTIA, to develop and maintain broadband inventory maps of the United States.

·        Grants for wireline to be split 75% for advanced broadband in underserved areas and 25% for basic broadband in unserved areas. 

·        Grants for wireless to be split 75% for advanced broadband in underserved areas and 25% for basic wireless in unserved areas.


The Act requires the FCC to define in much greater detail the meaning of “unserved” and “underserved” areas.  This should not be construed as limiting the extent of the grant program and, by way of example, NATOA has developed a list of projects that can be initiated in a matter of months, and completed within approximately two years.  For the NATOA list connect to:

It is important for state and local governments to begin to think about the importance of the Act and the broadband portion and identify state and local priorities.  The time periods under the Act for submitting grant requests will, as currently written in the Act, be somewhat short as it is very clear that the intention is for fast action to enable rapid economic recovery.  Further, the Obama administration has made it clear that this Act and the stimulus and economic recovery programs to be initiated by the Obama administration are absolutely essential for our national recovery, including jobs creation and business stimulation.  This Obama administration has sent a clear message to Congress of the importance of taking action at an early date.  An understanding of the Act and its relationship to state and local governments requires prompt attention to state and local government plans, and goals for economic development and improvement will be ready for submittal of an application for participation in the wireless and broadband grant programs.

There have been numerous articles regarding economic stimulus programs and the goals and policies of the new Obama administration.  While the Obama administration has made it clear that this Act, and in particular the broadband portions of the Act briefly outlined above, are a good start, they do not meet the full extent of the administration’s goals for infrastructure development necessary for economic recovery as well as advancing the state of broadband capabilities throughout the country. 

Our purpose in writing this brief overview of the American Recovery and Reinvestment Act of 2009 is to bring to the attention of IMLA members and local officials the importance of the Act for state and local governments and to set the stage for subsequent articles about this Act that we will include as postings to the IMLA Blog as the Act winds its way through Congress and its ultimate passage.


December 18, 2008
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Posted by: Nicholas P. Miller, Partner, Miller & Van Eaton, PLLC

There was another pair of shoes thrown last week.  It occurred in Washington DC, when leaders in Congress, not frustrated Iraqis, took aim at the Federal Communications Commission. 

The current Chair of the FCC, Republican Kevin Martin, has been broadly attacked to the point of being investigated for manipulating FCC processes in ways inconsistent with the agency’s own rules and in ways designed to frustrate public participation and effective consideration by other commissioners [Link].  Congress reacted strongly to statements by the Chairman that “business would continue as scheduled” in regular Commission meetings in mid-December and mid-January.  In a letter dated Dec. 12, 2008, and unlike any previous in my memory, presumed Senate & House Committee Chairs Senator Rockefeller (D-WV) and Henry Waxman (D-Ca) said:  Stop the boat.  Focus on the Digital TV transition.  And stop trying to push through major policy changes as a lame duck Commission.

Chairman Martin finally conceded it was time to stop further major Commission actions until the Presidential Transition is completed and cancelled the December and January Commission meetings, although items could still be approved with written consent of the other Commissioners.

This concession means the FCC will not likely act on any major policy issues until the Obama administration designates a new FCC Chair. Congress will also have to confirm a  fifth member to the FCC as Commissioner Deborah Tate must leave the Commission upon the swearing in of the 111th Congress.  Until then the FCC will be stalemated 2-2.. 

So why does this “inside baseball” story matter to City Attorneys?  Let me list the reasons: 

• The wireless industry’s effort to get FCC preemption of local cell tower zoning is stopped dead, for now.  (
• The reconsideration petition filed by local governments challenging the Commission’s preemption of local cable franchising for incumbent cable operators is further deferred. (
• The reallocation of telephone subsidies which support rural and high cost subscribers will be left to the next administration. (; and
• Most important, the 700 MHz or “D Block” public-private public safety interoperability auction rules remain undetermined.  (

Later blogs will devote more time and comment to the 700 MHz D Block issue.  For now, consider these orientation comments:

1. Would 1st Responders benefit from Broadband communications capabilities on every portable laptop in every emergency vehicle?
2. Would metropolitan areas and local governments benefit from broadband and interoperable mobile?
3. Would all citizens benefit from universally available and very fast wireless internet access?
4. Would inner city and under-served rural areas benefit from robust, high-speed internet access without the expense of building wires to every location?

Too good to be true?  Not if the FCC sets the right rules for the merged construction and operation the 700 MHz D Block with the existing allocation of 700MHz wideband public safety spectrum which comes available in February 2009 after television broadcasters move from analog to digital transmission.

If the D Block is successfully merged into a common network with the public safety allocation, 20MHz of spectrum would be available nationwide.  This is sufficient bandwidth to meet the entire wish-list above.

Unfortunately, economics and physics have a habit of intruding on wishlists.  In this case, a nationwide system of antennae and network links must be built (estimated to cost at least $10 Billion).  Reception devices (PC cards @ $50-$100 each) need to be provided to each user.  And someone must operate the network.

The Public Safety wideband 10 MHz has been licensed to a national consortium of public safety operators.  []  But that group, its member agencies, and state and local government in general, do not have the financial resources to build a nationwide wireless network.  The FCC had a plan to do this.  [In the Matter of Auction of the D Block License in the 758-763 and 788-793 MHz Bands, Order, 23 FCC Rcd 5421 (2008)]  The FCC tried to auction the D Block to a private operator, with the requirement that the successful bidder would operate the D Block along with the 10 MHz of wideband spectrum already set aside for public safety.  The FCC hoped the D Block bidder would build a single nationwide network, serving both private and public wireless users.  No one accepted the offer.

So the FCC has been reconsidering how to structure a new auction of the D Block.  And until the Congressional letter, the lame-duckedness of the current FCC created risks.  Many private sector players are trying to get the FCC to adopt quick D Block auction rules, relieving the successful bidder of the most costly obligations associated with serving public safety and building a true nationwide system. 

The freeze on major FCC actions stopped this raid on public spectrum.  Now state and local governments must nail theses shenanigans permanently shut.  We all will benefit from a broadband, nationwide, wireless system that is soundly financed, built universally and able to support all levels of local government requirements.  Doing it right will resolve major public safety communications problems as well as major problems integrating rural areas and others into the national internet economy.

More later on how the D Block/Public Safety 20MHz system should be structured.

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.