Technology moves faster than the regulations governing it.
Woodburn recently took steps to address that issue when the city passed an ordinance aimed at creating a level playing field for utility service providers that use the city's right-of-way (ROW).
The ordinance was crafted through a painstaking, detailed process with Assistant City Manager Jim Row and Assistance City Attorney McKenzie Granum working with ROW consultant Reba Crocker. Woodburn City Council had been apprised of the process several times since July before passing the ordinance on Monday, Nov. 23. It applies FCC safe-harbor fee structures for future providers. The six utility providers already using Woodburn's ROW will continue under current contracts with the city until they expire before coming under the new regulatory umbrella.
Crocker said the ordinance mirrors similar regulations established in recent years by other cities in the region: Beaverton, 2016; Gladstone, 2016; Gresham, 2012; Happy Valley; 2016, Hillsboro, 2016; Lake Oswego, 2019; Milwaukie, 2017; Oregon City, 2013; Sherwood, 2018; Tigard, 2019; Tualatin, 2017; and now Woodburn, which will go into effect in 2021.
The council voted 5-1 with the dissenting vote coming from Councilor Robert Carney. There is currently litigation between the city of Corvallis and AT&T, and between Beaverton and Comcast. The councilor indicated that he did not feel comfortable passing a utility ordinance until the results of those lawsuits are known, recommending to "put a pause" on the vote instead.
Crocker pointed out that the Corvallis utility ordinance is significantly different from the one Woodburn has crafted, especially with regard to FCC safe harbors.
Councilor Debbie Cabrales asked about potential consequences of postponing the vote. Granum indicated it could limit the city's regulating options with new utilities.
"My concern with pausing at this point in time is that the city doesn't have a good regulatory program in place for oversight of what's called small cell facilities," Granum said. "The ordinance being proposed covers all utility services. But when we first started this it was initially to address and ensure that we had a licensing program in place that we could actually process and approve permits for small cell facilities."
Crocker pointed out that technology, law and even FCC requirements are dynamic, and so having an ordinance established affords the city more flexibility; it's easier to adjust an ordinance than to draw up or adjust a long-term contract as circumstances change.
Granum articulated similar thoughts.
"Putting in place a pause (on the vote) may actually hinder the city's ability to address small cells," she said. "We could come back with a modified version of this that addresses only small cells. But that does need to be looked at, because currently the city's only mechanism to approve small cells is through a franchise process."
Granum further explained that the FCC has "shot clock" rules, which require a municipality to establish terms with a provider within a given time frame, and the franchise process would likely jeopardize shot-clock deadlines.
"Small cells are coming. If you do not have a mechanism in place to at least recoup some of those costs ... you will lose money regulating the small cells, just in issuing the permits alone," Crocker advised.
"If the city doesn't have a regulatory process for small cells ... the cost of regulating and trying to permit those could be passed on to citizens of Woodburn," City Administrator Scott Derickson echoed. "That is always a concern when we are in a position of subsidizing a corporate interest."
Derickson further noted that the city already levies fees on companies that use the city's ROW, though there are loopholes enabling some to sidestep that obligation.
"What we are seeking to do is the leveling of the playing field," Derickson said. "Everybody who utilizes the residents of Woodburn's right-of-way for profit pays a fee that then benefits the community with the dollars that we then use to provide public services."
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