| Action | Update the Uniform Statewide Building Code |
| Stage | Proposed |
| Comment Period | Ended on 5/26/2017 |
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16 comments
Thank you for the opportunity to submit comments.
My comments pertain to the State Building code 13VAC5-63. The Commonwealth should adopt all of the 2012 and 2015 energy conserving provisions recommended by the International Energy Conservation Code (IECC) which the state promised to do when it accepted its stimulus grant funds when Kaine was governor.
If that is not possible, I urge you to address the following issues:
1) Building envelope tightness—The envelope is the air barrier. The IECC’s current standard is 3 air changes per hour using a mechanical blower door to verify compliance. The current Virginia code (VAUSBC) “requires” an independent blower door test with no more than 5 air changes per hour with the option of permitting a visual inspection in lieu of the the blower door test. Please institute a code amendment to delete the visual inspection option from the code and to lower from the current 6 to 3 the permissible number of air changes per hour as recommended by the IECC.
2) Duct tightness—Ducting in new construction usually penetrates the building envelope to enter into attic space or crawl space. If the ducting is leaky, the conditioned air is vented out (into the attic or crawl space) and the energy used to condition (heat/cool/ dehumidify) it is of course entirely wasted. The IECC’s current standard is 4 CFM using a mechanical duct blaster test to verify compliance. Ideally the ducting would have zero leakage. Currently the VAUSBC limits leakage to 8 CFM determined by a duct blaster test with the option for a visual inspection. Please implement code amendments to delete the visual inspection option and lower the leakage rate to 4. A higher rate may be suggested if the entire system, air handler and all ducting are within the building envelope, i.e. not in the attic.
3) Increase wall R value from 15 to 20. In conventional stick built construction this typically means installing an insulated exterior sheathing or using 2 X 6 exterior studs.
4) Increase attic R value from 38 to 49. Here we are also looking for use of elevated hip roofing at the top of the exterior walls to permit sufficient space for insulating at R49.
Thank you,
Reba Elliott
In its consideration of the Virginia Uniform State Building Code (VA USBC), the Board of Housing and Community Development should adopt all of the energy saving recommendations of the 2012 and 2015 International Energy and Conservation Code. At the minimum the VA USBC should require the duct blaster and blower door tests by eliminating the current exemptions permitting a visual inspection in lieu of the actual mechanical tests. It should also adopt the IECC’s leakage rates, which are lower than those currently allowed by the VA USBC) and the IECC’s higher insulation R-values for exterior walls (R20) and ceilings (R49).
The VA USBC section 102 purpose states that buildings “should be permitted to be constructed at the least possible cost.” Permitting to the “least possible cost” includes constructing to control the costs of ownership, which the current, and proposed code fail to do. The costs of the additional 2012 IECC energy efficiency provisions typically provide a rate of return on investment that beats the long-term average of the stock market. The Department of Energy estimated a Virginia statewide average savings of $388 for every newly built residence had the BHCD adopted the entire 2012 IECC compared to the 2009 code. In practice these savings are likely much greater than estimated because the DOE calculation assumes an average compliance with the 2009 leakage limits for the building envelope and duct. That is highly unlikely in view of the higher thermal leakage rates of untested structures.
Addtionally, there are these considerations:
The Benefits: Efficient homes save on utilities, usually present a more enjoyable and healthier interior experience, and reduce adverse public health impacts, and their associated costs, from the air pollution of conventional electricity production.
Consumer Information: Virginia’s homebuilders should be transitioning towards adoption of the Home Energy Rating System (HERS). The blower door and duct blaster tests are components for obtaining the HERS that informs the residential consumer market about the energy demands of houses. Requiring this test with its companion duct blaster test would nudge the real estate sales industry in Virginia’s major metropolitan areas to further expand its recognition of the Home Energy Rating System (HERS) so that prospective home buyers and tenants are informed about the energy requirements of houses on the market.
An economic stabilizing force for families and neighborhoods: The University of North Carolina’s Center for Community Capital disclosed in a 2013 study (with 99% confidence) that the higher the efficiency of the house, the lower the mortgage default rate. The study was based on comparing Energy Star built homes against those that were not ES rated. Energy Star requires the mechanical blower door and duct blaster tests. Other studies show that houses certified efficient retain better resale value. Both these factors contribute to community and family stability.
Climate Change and Acidification of the Earth’s Oceans: I see no evidence that the BHCD’s decisions on energy efficiency are influenced by the impacts from global warming that civilization faces, all due to our current dependence on fossil fuels for production of energy required to heat, cool and run our homes. Much of coastal Virginia is threatened by sea level rise, so the Commonwealth has much at stake in adopting policies to, as a minimum, do its fair share.
The Center for Climate Change Communication at politically conservative George Mason University reports this year that its surveys show that nearly 70% of Americans “say the U.S. should participate in the COP21 (Paris Climate) agreement”, that global warming is happening and that “global warming is a threat to future generations”. Earlier surveys reveal that about 50% of Americans believe warming is mostly due to human activities and about 1/3 think of it as a moral issue. These rates would be higher if more Americans knew that almost all (over 98%) climate scientists have concluded, “Human caused climate change is happening”. Because of the fossil fuel industry’s disinformation campaigns, only one in seven Americans is fully aware of the high level of scientific consensus. With time, that level of misunderstanding will drop.
In view of the above, adoption of the basic cost-effective energy efficiency requirements is a minimal step that deserves the Board’s full support.
Governance: The Commonwealth came under national criticism recently over the integrity of its governance structure. Much of the criticism was based on simplistic criteria and misunderstandings that failed to appreciate how Virginia’s government is organized. But there is a legitimate beef about governance when a Commonwealth’s organizational mechanism fails to adopt rules that benefit families, save them money and enhance the financial stability of neighborhoods.
Being Prepared for the Future: Has the BHCD done what it should to prepare Virginians for a future energy economy to be transformed by a future carbon tax? Clearly not, as it has rejected the recommendations of the IECC that are highly cost effective within the current market price economy.
The following is restated from my posts on the cdp VA system:
Blower door statement Air Sealing R402.4.1.2: I agree with Mr. Grigsby’s proposal to remove the visual inspection option R402.4.1.2.2. New homebuilders cannot fulfill their required warranty that the structure meets the minimum air change rate, absent the dynamic testing by an independent blower door professional. In my discussions with northern Virginia builders participating in Energy Star, I have been told that houses initially fail (either the blower door, the duct blaster or both tests) about 25% of the time. Building without any intention of using the dynamic test must yield a very high failure rate with needless long-term energy costs and reduced comfort for homeowners and tenants.
Duct Blaster Statement CE-R403.2.2 cdpVA-15: There is considerable merit to Mr. Grigsby’s proposal to remove the visual inspection option R(403).2.2.2. Absent the dynamic testing, no new homebuilder can assure buyers of its required warranty that the duct is sealed to comply within the code’s maximum air leakage rate. This matters because ducting usually penetrates the building envelope into the attic or crawl space. A visual inspection cannot be an adequate substitute for detecting what is not viewable.
Loss of conditioned air with the resultant draw of unconditioned air through leaky areas of the building’s envelope should be minimized. Homeowners and tenants should not be condemned for the life of the building to pay the costs of this avoidable waste when the remedy is the cost-effective duct blaster test requirement.
the Board of Housing and Community Development should adopt all of the energy saving recommendations of the 2012 and 2015 International Energy and Conservation Code.
If this is not possible due to pressure from the Homebuilder’s lobby the following must be be mandated:
VA USBC should require the duct blaster and blower door tests
Adopt the IECC’s leakage rates
Use IECC’s higher insulation R-values for exterior walls (R20).
Use IECC’s higher insulation R-values for ceilings (R49).
Remove the visual inspection option R402.4.1.2.2.
New VA homeowner’s deserve better than what we have had to live with. The cost is minimal for this additional services so the payback period is short.
The Department of Energy estimated a Virginia statewide average savings of $388 for every newly built residence had the BHCD adopted the entire 2012 IECC
Note: A 2013 study shows the risk of mortgage default is one-third lower for energy-efficient, ENERGY STAR-rated homes – a factor lenders and Congress should consider when making mortgage loans and policy. http://ccc.unc.edu/news/owners-of-energy-efficient-homes-are-less-likely-to-default-on-mortgages/
Thank You for considering the Virginia home owners.
Sir or Madam,
Nationally, all non-manufacturing buildings account for approximately one third of CO2 emissions and 70% of electrical consumption. Obviously, there is a great need for building codes that ensure energy efficiency and these codes must be based upon tested standards. The 2012 and 2015 International Energy Conservation Code (IECC) provisions provide a logical methodology for CO2 emissions reduction and I support their adoption.
If full adoption of the 2012 and 2015 IECC provisions is not possible, please consider adopting the provisions recently submitted by Andrew Grigsby of the Local Energy Alliance Program and others. They are as follows:
-Envelope tightness: Eliminate the visual inspection option and lower the hourly air change rate of five to three.
-Duct tightness: Eliminate the visual inspection option and lower the current leakage limits from eight CFM to four CFM.
-Insulation R value: In walls, increase it from a minimum of 15 to 20 and in attics increase it from 38 to 49.
The option for visual inspection in lieu of mechanical testing is laughable. It is analogous to asking a floor installer if the installed floor is level and him/her basing his/her assessment on looking at the floor instead of using a mechanical level.
Frequently, home builders complain that adhering to strict energy saving standards is too costly, however, there are good arguments that, strategically speaking, the initial costs are, at minimum, equalized over time. A University of North Carolina study found that the mortgage default rate is lower for energy efficient homes. Additionally, the National Association of Home Builders found that nine of ten new home buyers are willing to pay two percent more for energy efficient homes and that the 2012 IECC code implementation would provide a five percent return on the initial investment.
Gary Medlin, Chesapeake Bay Group Sierra Club
Thank you for your consideration of my comments regarding the Virginia Uniform Statewide Building Code (13 VAC 5-63). I support the full adoption of the 2012 and 2015 IECC provisions. If full adoption is not possible, I encourage you to adopt the following provisions:
Since many residential buildings are expected to last between 75 to 100 years, the decisions made today affect future generations. Nationally, non-manufacturing buildings account for about 1/3 of CO2 emissions and 70% of electrical consumption. These new suggested provisions are critical to reducing Virginia’s carbon footprint.
Mr. John Ainslie, Chair
Board of Housing and Community Development
600 East Main Street, Suite 300
Richmond VA, 23219
Dear Chairman Ainslie,
I am writing today on behalf of the Virginia Multifamily Energy Efficiency Coalition (MFEEC) to support the inclusion of certain energy proposals as part of the current draft of the Uniform Statewide Building Code (USBC). The Virginia Multifamily Energy Efficiency Coalition is a cross-sector initiative lead by the Virginia Housing Alliance whose goal is to advance policies and programs that will provide comprehensive energy efficiency services to the state’s multifamily affordable housing stock, recognizing the impact that efficiency has on housing affordability for Virginia’s citizens. While we believe it would ultimately be most beneficial to consumers in Virginia for the Board to adopt the 2015 IECC without amendments as we assert in our comments below, we are also supportive of Virginia adopting any set additional measures contained in the 2015 IECC it deems appropriate into the USBC. Accordingly, based on the recent stakeholder process, we fully support the compromise proposal put forth by the Energy Code Sub-Workgroup that would create an optional compliance pathway for builders to meet the 2018 Energy Rating Index while requiring that all homes are tested to assure duct system leakage of 4% or less for systems outside of conditioned space. Additionally, we support the proposed amendments that would require 75% high-efficiency lighting and R-3 insulation on hot water pipes.
Virginia has a great opportunity for leadership in energy efficiency, and the Commonwealth should commit to strategies that will enable the goal of achieving cost-effective energy efficiency in our housing stock. Energy efficiency is the simplest and most cost-effective way to reduce energy consumption, and we encourage the Board to assess the long-term costs and benefits of energy efficiency when evaluating code proposals. Increased Energy Efficiency standards in the Virginia building code will benefit home buyers, builders, investors, renters, the grid, and the environment.
Many of the latest advances in residential energy efficiency have been in response to consumer demand. For low-income and very low-income Virginians, monthly utility costs are a major determinant of housing affordability. Prospective tenants and homebuyers are seeking affordable housing with low and stable monthly expenses on energy bills. Modern consumers are attracted to efficient homes, therefore home builders who build the most efficient homes will be offering a more attractive product in the housing market; the property values will be higher, and there will be greater demand for their construction. While there is not yet a standardized way to market the efficient features and performance of a home, the industry is actively moving towards recognizing efficiency as a marketing tool and it is not unreasonable to expect that a home’s efficiency rating to find its way into the MLS (multiple listing service) within the next several years. In addition, homeowners with efficient homes are less likely to lose their homes to foreclosure. A 2013 study from the University of North Carolina’s Center for Community Capital compared mortgage default rates in a sample of 71,000 Energy Star and Non-Energy Star homes including many in Virginia. The study found that default risks are on average 32% lower in the energy-efficient homes while accounting for loan, household and neighborhood characteristics.
Recent studies have confirmed that many non-energy benefits are derived from efficiency upgrades. Housing-related health and safety risks are a serious problem for low-income Virginians and especially for those living in multifamily housing and for households of color. The “co-benefits” of energy upgrades include improved indoor air quality and the overall health and safety of the residents, as well as reduced hospital visits. Better indoor air quality is a particularly important health benefit in Virginia where the city of Richmond ranked as the second asthma capital of the country in 2015 after ranking first in 2014 according to the Asthma and Allergy Foundation of America (AAFA). Savings from Energy Efficiency measures enable homeowners and tenants to redirect spending to non-energy needs such as education and health care. To make this point further, a 2016 study from the American Council for an Energy-Efficient Economy found that on average in 48 American cities, low-income households pay 7.2 percent of household income on utilities on average – more than three times the amount that higher-income households pay (2.3 percent). In Richmond, these numbers are 6.5 percent and 3.1 percent respectively. In Virginia Beach, these numbers are 7.5 percent and 3.9 percent. This study suggests that building homes and apartments that will cost less to heat and cool will have a particularly greater positive impact on low-income Virginians.
Housing Virginia and the Center for Housing Research at Virginia Tech released a study in 2015 that analyzed actual utility usage data in 15 Low-Income Housing Tax Credit projects across the state that were built or renovated to EarthCraft standards. Building to the Earthcraft program standards includes blower door tests, duct leakage tests, higher R-Values in wall assemblies and many other building techniques that are included in the 2015 International and Energy Conservation Code but not in the current draft 2015 USBC. This study was the first of its kind in Virginia and found that on average by building to the EarthCraft standard, these apartments consumed 40% less energy than standard new construction (against 2009 IECC), and outperformed the program’s projected energy models by 17% on average. Translated to 2014 energy costs, these apartments were saving the average resident $54 a month or $648 annually. The impact of this reduction in energy costs for low-income tenants is substantial; $54 a month may not sound like a significant amount, but for extremely low-income Virginians, that reduction can represent almost 10% of total housing costs. The results of this study suggest that we can rely on this energy modeling to deliver on the savings it projects and that reasonable efficiency measures such as those prescribed by the 2015 IECC will provide Virginians with homes that are more affordable – and, incidentally, more comfortable and healthy.
The Energy Information Administration estimates that buildings consume approximately 40% of United States domestic energy supply, 70% of the electricity, and produce 35% of the United States carbon dioxide (CO2) emissions. Meeting energy needs through efficiency saves ratepayers from considerable unnecessary investment in utility infrastructure, thereby keeping rates lower than would be the case in the absence of energy efficiency implementation. Reduction in usage reduces peak load on the grid and helps to alleviate the need for additional generating capacity, which is an increasing concern of utilities. The energy savings potential can make a big difference in enabling Virginia utilities to achieve statewide energy savings goals, such as the voluntary goal to reduce retail electricity consumption for commercial and residential buildings by an amount equal to 10% of 2006 consumption by 2020. The Governor’s Executive Committee on Energy Efficiency was presented data from the State Energy Office showing that full adoption of the 2015 IECC model code will be essential in order for the Commonwealth to meet the 10% electricity savings goal. The reduction in needed peak generating capacity that would result from adopting the 2015 IECC would also put utilities in a better position to meet whatever level of carbon emission limits may be set for electric power plants in the future as a result of Governor McAuliffe’s Executive Directive 11 made on May 16th.
In 2012, the IECC model code included significant, worthwhile efficiency measures that were not included in the 2014 Virginia USBC update, such as an increase for wall and attic insulation, more efficient window and lighting requirements, hot water pipe insulation, and required mechanical testing for whole home air-tightness and ductwork. Based on calculations by the Department of Energy, this was a missed opportunity for Virginia’s consumers. Energy modeling by the US Dept. of Energy estimates that had Virginia adopted the 2012 IECC without amendments in its last code cycle, occupants of average new homes in Virginia, would have enjoyed a net annual cash flow savings of $272 starting from year 1 and a life-cycle cost savings of $5,836 over the course of a 30-year mortgage.
In making its decision, we are hopeful that the Board will consider the long-term benefits stronger efficiency standards in the USBC would deliver to owners and renters living in newly built houses and apartments in Virginia. It is our hope that if the Board approves the proposal set forth by the Energy Code Sub-Workgroup supported by the MFEEC this building code cycle can serve as an important step towards fully adopting the current IECC in the future. Building to the model energy code will deliver demonstrable results that will make a real difference to consumers through the entire lifecycle of these buildings and we believe that instituting mandatory duct testing and creating an Energy Rating Index compliance pathway per the sub-workgroup proposal is an important intermediary step Virginia can take towards this goal.
Sincerely,
Zack Miller
Director of Policy
Virginia Housing Alliance
Multifamily Energy Efficiency Coalition
Mr. John Ainslie, Chair
Board of Housing and Community Development
Department of Housing and Community Development
600 East Main Street, Suite 300
Richmond, VA 23219
RE: Comments on Virginia Uniform Statewide Building Code
Dear Chairman Ainslie:
Thank you for the opportunity to submit comments on the Virginia Uniform Statewide Building Code (13 VAC 5-63). The Virginia League of Conservation Voters advocates for changes in the code to ensure buildings are more energy efficient to reduce Virginia’s carbon footprint.
Reducing carbon emissions through energy efficiency measures will help mitigate climate change, which is already impacting Virginia through increasing temperatures and rising sea levels. Virginia cities are taking steps to reduce emissions and improve energy efficiency, and leadership through the implementation of a strong model building code will help local initiatives to succeed. For example, Richmond announced a goal to reduce greenhouse gas emissions in the city by 80% by 2050 and Arlington has an initiative to reduce its emissions by 25% by 2020. State executive actions also encourage strong energy efficiency measures. Both the Governor’s Executive Order 57 and Executive Committee on Energy Efficiency highlighted the need to update energy efficiency building codes.
A comprehensive model code will have a tremendous impact. The U.S. Energy Information Administration has found that buildings consume about 40% of the energy in the country. Nationally, more efficient measures could allow home and business owners to save “an estimated $126 billion and [and achieve] 841 million metric tons of avoided carbon dioxide emissions through 2040,” according to the U.S. Department of Energy, and such savings “equate to the annual emissions of 177 million passenger vehicles, 245 coal power plants, and 89 million homes.”
Requiring mechanical testing, such as duct blaster testing and blower door testing, and not relying on visual inspections will allow for accurate evaluations of air-tightness and energy losses. We recommend that the building code is updated to at least meet the 2015 International Energy Conservation Code standards, and if the standards are not adopted in their entirety now then we encourage the inclusion of the best practices from the model codes during this process.
Sincerely,
Mike Town
Executive Director
Verizon Communications Inc. (“Verizon”), through several affiliates, provides telecommunications, information, and television services through both wired and wireless technology throughout the Commonwealth of Virginia. Verizon’s affiliate service providers include regulated public utilities, franchised cable television providers, and non-regulated wireless providers. As such, Verizon has a unique perspective on the exemptions contained in the Uniform Statewide Building Code (“USBC”) for support structures used to provide telecommunications and information services. Verizon submits that exempting support structures from the USBC based on the entity installing the structure (as provided in the current rules) or the services provided using those support structures (as provided in the proposed rules) is unreasonable, discriminatory, and violates new state legislation that will take effect on July 1, 2017.
Currently, 13VAC5-63-20.D exempts, among other things, “poles and towers supporting the related wiring installed by a provider of publicly regulated utility service or a franchised cable television operator” from the USBC. The proposed revision exempts, among other things, “supporting structures used for providing wired utility, telecommunications, information, or cable television service” from the USBC. However, support structures used to provide wireless transmission of radio broadcast, telecommunications, or information service are not exempt.
There is no rational basis to exempt support structures used for wired telecommunications and information services from the USBC, but not the same structures used for wireless telecommunications and information services. Wireless telecommunications and information services providers (collectively “wireless providers”) are increasingly expanding beyond the use of traditional cell phone towers to support wireless infrastructure.
As more providers install small cell technology, they are doing so on the same wooden poles used by wired utilities, telecommunications, information, and cable providers. These wooden poles are currently exempt from the USBC, but are regulated by the National Electrical Safety Standard. The wooden poles are graded at the mill based on industry recognized formulas governing the capacity of the poles. Under the current rules, if a new wooden pole is installed to support wireless equipment, it would only be exempt from the USBC if it is installed by regulated utility or franchised cable provider. However, increasingly, wireless providers and wireless infrastructure providers are seeking to install such poles themselves rather than relying on a regulated utility or franchised cable provider to do so. Under the proposed rules, such a wooden pole would be exempt from the USBC if it was also used to provide wired utility, telecommunications, information, or cable television service, but not if is used provided solely wireless services.
As a result of this disparity in the exemptions, wireless providers face added expense and delays as they are required to (i) negotiate pole attachment agreements with public utilities and franchise cable providers to install equipment on their poles are used to provide wired telecommunications or information services, or (ii) obtain a building permit to build a new pole. Under the building permit process, a building official may require that a professional engineer certify the capacity of the pole. Such verification would require an inspection of the pole to verify its condition, adding costs and delay to its use to support wireless equipment. And for existing poles, the structural engineer’s certification would necessarily include numerous disclaimers that may not be accepted by the building official. For example, the engineer may not be able to verify the condition of interior of the pole, the depth of the pole, or that the installation of the pole was done correctly.
An exemption from the USBC for support structures based solely on the type of provider that installed it or the type of services provided over it is unfair and discriminatory. As such, the proposed revisions would violate SB 1282 passed by the 2017 General Assembly.
Intended to facilitate the installation of wireless infrastructure in the Commonwealth to increase wireless telecommunications and broadband services, SB 1282 established new Virginia Code § 56-484.27.A that prohibit localities and the Virginia Department of Transportation from imposing on wireless services providers and wireless infrastructure providers “any restrictions or requirements concerning the use of the public rights-of-way, including the permitting process, the zoning process, notice, time and location of excavations and repair work, enforcement of the statewide building code, and inspections, that are unfair, unreasonable, or discriminatory.” (emphasis added). Exempting support structures used for wired telecommunication and information services from the USBC, but not support structures used for wireless telecommunications and information services is unfair and discriminatory, and thus would violate this new provision of state law that takes effect July 1, 2017. Moreover, as described above the additional inspection process required to obtain a building permit for wooden poles supporting wireless equipment is directly contrary to goal of SB 1282, as well as state and federal policies that facilitate installation of wireless infrastructure in order to expand broadband access.
Verizon respectfully submits that support structures used to provide any telecommunications or information service should be exempt from the USBC, regardless of who installs them or whether they are wired or wireless. To the extent the Board finds it appropriate to distinguish between traditional cellular towers and traditional utility poles, it should exempt all support structures used to provide telecommunications or information services regulated by the National Electrical Safety Code from the USBC.
Fairfax County’s Building For All Committee (BFAC) is a public-private coalition whose mission is to advocate for homes to be comfortable, safe, convenient and that they enhance the independence of people of all ages, sizes and abilities. We seek to accomplish this by: Promoting the merits of universal design features in housing; educating consumers about the benefits of universal design; leading advocacy efforts to affect public policy in support of universal design; and by increasing the building industry's knowledge of universal design.
BFAC is exceedingly grateful to the Department of Housing and Community Development for maintaining the requisite for 34 inch doorways in newly constructed single family homes as part of the revisions to the Commonwealth of Virginia’s Statewide Uniform Building Code. We also support the need to clarify the language in the Commonwealth’s Building Code as to when specifically this condition should be applied. BFAC’s support for adequate space for maneuverability is in no way intended to impose an undue burden on builders, and is solely intended to make newly constructed homes in Virginia environments where people of all ages and abilities can thrive.
While reviewing the updated language which we strongly support, two areas of potential concern were identified that we would encourage you to clarify before the revised building code is finalized.
BFAC supports the concept of this newly implemented prerequisite for 34 inch doorways to apply to newly constructed single family homes. We applaud VHDA’s efforts and understand the need to clarify the language in the revised version of the Commonwealth of Virginia’s Statewide Uniform Building Code. Our only concern is that these two exceptions for “additions” and “reconstruction” could be used as potential loopholes for builders to avoid complying with the 34-inch doorway obligation, and hope that you’ll take our comments into consideration as you finalize the language in the revised statewide uniform building code.
Most importantly, we would like to thank you for such a fantastic initiative for people of all ages and abilities. A recent study found that only one to three percent of the nation’s housing stock includes Universal Design features like wider doorways that are so desperately needed. BFAC is convinced that successfully implementing this exciting new opportunity will not only send a message to the rest of the country that Virginia is a state welcoming for everyone, but also gives us a strategic advantage to be ahead of the growing demand for Universal Design features in newly constructed single family homes.
Thank you,
Members of Fairfax County’s Building For All Committee
May 26, 2017
Mr. John Ainslie, Chairman
Board of Housing and Community Development
Main Street Centre
600 East Main Street, Suite 300
Richmond, VA 23219
Dear Mr. John Ainslie:
We, the undersigned members of the Governor’s Executive Committee on Energy Efficiency (GEC) and the Virginia Energy Efficiency Roadmap Team support increased energy efficiency in Virginia’s Uniform Statewide Building Code (USBC). As staff to the GEC and managing partner of the Roadmap Team, the Division of Energy, Department of Mines, Minerals and Energy is aware that there are several proposals before the Board of Housing and Community Development (the Board) that would strengthen energy efficiency standards for commercial and residential buildings throughout Virginia. Energy efficiency provides many benefits, including savings for homeowners, recoverable costs for homebuilders, new jobs throughout the Commonwealth, improved building comfort, and reduced environmental impacts.
The GEC was created by Governor McAuliffe in May 2015 and is tasked with developing strategies and recommendations to achieve Virginia’s goal of a 10 percent reduction in retail electricity consumption in the Commonwealth by 2020. The GEC is comprised of public and private sector stakeholders including representatives of utilities, financial institutions, universities, energy efficiency service providers, environmental organizations and consumer advocates.
The Virginia Energy Efficiency Roadmap Team is a group of public and private energy efficiency stakeholders and subject matter experts that received a grant award from the U.S. Department of Energy in January 2016 to support the work of the GEC by developing recommendations to achieve the Commonwealth’s 10 percent electricity conservation goal.
Based on projections by the Division of Energy, the adoption of the provisions of 2015 International Energy Conservation Code (IECC) without amendments in the USBC could represent 1.4 million megawatt hours of avoided energy consumption, which represents 13.6 percent of the state’s energy conservation goal. These avoided megawatt hours would provide the largest single contribution to the 10 percent goal to date.
The signers of this letter compiled by the Division of Energy view the adoption of the standard energy efficiency measures in the USBC as a cost-effective and practical approach to avoiding energy generation, saving money, and creating economic opportunities in Virginia. We encourage the Board to consider each proposal carefully with the perspective that updates made in the USBC during this code cycle can play a very significant role in our progress towards achieving Virginia’s electric energy conservation goal.
Thank you for your time and consideration.
Sincerely,
Cynthia Adams
Member, GEC
Pearl Home Certification
Will C. Cleveland
Member, GEC
Southern Environmental Law Center
William R. Prindle
Member, GEC
Local Energy Alliance Program
Dana Wiggins
Member, GEC
Virginia Poverty Law Center
Cyrus Bhedwar
Member, Roadmap Team
Southeast Energy Efficiency Alliance
Kyra Hoskins
Member, Roadmap Team
Clean Energy Solutions, Inc.
Maggie Molina
Member, Roadmap Team
American Council for an Energy Efficient Economy
BEFORE THE
BOARD OF HOUSING AND COMMUNITY DEVELOPMENT
OF VIRGINIA
In re Virginia Uniform Statewide Building Code (13 VAC 5-63)
Proposed Regulations, 13 VAC5-63-20.D and 13 VAC5-63-80.B
Comments of the Virginia Cable Telecommunications Association on
Suggested Revisions to the Uniform Statewide Building Code
The Virginia Cable Telecommunications Association (“VCTA”), by counsel, hereby submits comments to the Board of Housing and Community Development (“BHCD”) on suggested revisions to the BHCD’s proposed new version of the Virginia Uniform Statewide Building Code (“USBC”).
I. Introduction
Since 1966, the VCTA has served as the trade association for cable television operators in Virginia and their affiliates. As envisioned by the Telecommunications Act of 1996, cable television operators have entered the telecommunications market (through corporate affiliates) as competitive local exchange carriers (“CLECs”) and have become the principal facilities-based competitors to the incumbent local exchange carriers (“ILECs”). Cable television operators in Virginia generally have established separate telephone company subsidiaries or affiliates to obtain CLEC certification from the State Corporation Commission of Virginia.
II. Background
Cable CLECs provide facilities-based competition to ILECs, but deliver their communications signals through various different technologies.
In 2002, a municipal inspection authority in Virginia claimed that a cable CLEC’s method of providing telephone service required a permit under then - existing provisions of the USBC.
The VCTA challenged that local assertion, believing that cable television and cable CLEC installations were exempt under the existing provisions of the USBC; but the VCTA proceeded to offer clarifications to those existing USBC provisions in 2003 which resulted in express exemptions in the USBC for cable CLEC providers.
The 2017 proposed amendments to 13VAC 5-63-20.D and 13 VAC 5-63-80.B revise the same USBC sections that were a concern to the VCTA and other communications providers in 2003.
While the VCTA appreciates the efforts of the BHCD working group studying USBC revisions to update these provisions, some of the changes made do not reflect current communications practices (or current or anticipated technology), and consequently need further minor revisions.
III. Suggested USBC Changes.
While cable and telephone installations of cable CLECs (and their cable television affiliates) are generally already exempt from the USBC, under the proposed language in the new regulations there are risks that new technology and current business and regulatory models could lead to disputes with local authorities over the scope of the exemptions (resulting in appeals to the local boards of building code appeals and eventually to the State Building Code Technical Review Board). The most efficient solution would be to clarify the USBC at this stage in the rulemaking process to reflect new technology and current business and regulatory practices.
A. 13 VAC 5-63-20 D
Wireline vs. wireless service distinction
The draft regulations create a new distinction between wireline and wireless service, essentially separating out wireless service and providing it with a narrower exemption – specifically that structures supporting wireline services are exempt from the USBC, but structures supporting wireless services will not be exempt from the USBC.
At present, wireline communications services are typically delivered (in the case of aerial installations) by attaching wirelines to utility poles. These utility poles, as supporting structures for wireline communications, are exempt from the USBC.
Wireless communications services today typically use radio signals (for at least part of their transmission paths), delivered by microwave transmitters placed on elevated towers or tall buildings for efficient signal transmissions, or, in the case of mico-wireless facilities, may be mounted on the strand between the utility poles.
As long as the existing utility poles still carry wireline facilities, these poles are presumably exempt structures; but if existing wireline facilities are removed from a pole, or if new utility poles are added which will only be used to mount a wireless antenna (and may be necessary in some cases for improved service coverage), the same utility pole, installed by the same carrier, will lose its USBC exemption if it is used only for wireless purposes. This approach, requiring local permits and consequent delays for broadband deployment, would be contrary to federal and state policy seeking to encourage broadband deployment and will likely give rise to disputes over whether federal pre-exemption of state and local barriers to broadband deployment should apply. It also seems to impose an unnecessary regulatory burden, without any justification. As the attached Reply Comments[1] of the NCTA in an FCC proceeding make clear on pages 2-3, the communications network of the next decade will be a mix of wireless and wireline facilities. Those Reply Comments also note that the FCC needs to take a holistic approach to encourage communications deployment to facilitate both wired and wireline construction, and keep them on a level playing field.
The 2017 Virginia General Assembly has just enacted legislation to encourage wireless services deployment, 2017 SB 1282 (to become effective July 1, 2017 as Va. Code §§ 15.2-2316.3, 15.2-2316.4, 15.2-2316.5, and 56-484.26 through 56-484.31).
Va. Code §56-484.27A of that new bill provides in pertinent part “No locality… shall impose on wireless service providers or wireless infrastructure providers any restrictions or requirements concerning …enforcement of the statewide building code and inspections, that are unfair, unreasonable or discriminatory.”
The proposed distinctions in the proposed new USBC treatment of wireline vs. wireless structure, without any rationale or justification, would seem exactly such an unfair, unreasonable and discriminatory burden.
In addition, in Va. Code §58-484.29.C of the new bill one particular type of wireless attachment (a “micro-wireless” facility) is singled out for special protection. “Localities shall not impose any fee or require any application or permit for the installation, placement, maintenance or replacement of micro-wireless facilities...”
The proposed new USBC burden which would be imposed on wireless structures seems both inconsistent with state policy and prohibited by these new statutory provisions.
The better solution would be to do away completely with the proposed wireline-wireless distinction, and keep the existing language of the current USBC unchanged on this point, exempting structures supporting wireline or wireless utility or cable television facilities from the USBC.
An alternative approach would be to exempt at least traditional utility poles from regulation, even when used for wireless service. Towers or buildings on which wireless installations are made could be regulated as non-exempt structures, but traditional utility poles could continue to be exempt.
This change could be implemented as follows:
13 VAC5-63-20. Section 102
D. Section 102.3 exemptions. The following are exempt from this code:
2. Electrical equipment, transmission equipment, and related wiring used for wireless transmission of radio, broadcast, telecommunications or information service, and supporting structures in the form of traditional utility poles, in accordance with all of the following conditions:
2.1. Buildings housing exempt equipment and wiring and structures (other than traditional utility poles) supporting exempt equipment and wiring shall be subject to the USBC.
B. 13 VAC 5-63-20 D
Ownership and Control of Equipment, Wiring and Supporting Structures
The existing exemption for communications equipment and wiring applies if the “ownership and control” of the equipment and wiring is by the communication service provider or its affiliates. Changes in communications policy and business models already strain the concept of “ownership and control” under this existing language.
A fiber sheath attached to a utility pole will contain multiple fiber optic cables, some of which may be owned by the communications entity which owns the sheath; but other fibers within the sheath may be owned by other regulated communications providers and other fibers by private parties, or governmental entities. Some fibers may be owned outright by third parties, and some may be fibers in which third parties have either exclusive leases or “irrevocable rights of use”. Arguably the sheath owner can claim that if it owns and controls the external sheath then this constitutes “ownership and control” of the equipment and wiring.
However, the proposed regulations would change this to mandate in Section 102.3.1.1 that “The equipment, wiring and supporting structures are owned and controlled by a provider of publicly regulated utility service or a franchised cable television operator or its affiliates.”
The addition of “supporting structures” to equipment and wiring could suggest that all three factors - equipment, wiring and structure - must be owned by the same entity. In fact, cable television operators rarely own their own utility poles (supporting structures) but rely on federal and state access rights to use utility poles of public utilities.
A single utility pole typically has multiple attachers, with each attachment owned by a different entity. Some attachments (such as a power supply) may serve one attacher, but can potentially serve multiple attachers. As noted earlier, in the case of a fiber optic communications sheath, today there are often multiple owners of rights within that sheath. Federal and state policy obviously encourages colocation of communications assets and sharing of communications facilities, not installation of multiple poles, power supplies and other equipment by every different communications provider.
To avoid any future confusion or disputes over this issue, the easiest approach would be to revise the language as follows:
13 VAC 5-63-20. Section 102
D. Section 102.3 Exemptions. The following are exempt from this code:
1.1 The equipment, wiring and supporting structures are owned or controlled by a provider of publicly regulated utility service or a franchised cable television operator or its affiliates. In the case of communications facilities, only ownership or control of the external physical features or elements of any wiring or equipment by a provider of publicly regulated utility service or a franchised cable televisions operator or its affiliates shall be required.
[1] See Exhibit C, the April 7,2017 Reply Comments of the NCTA (The Internet & Television Association) in the Matter of Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting Policies, FCC WT Docket No. 16-421.
PART 1
Part 2
C. 13 VAC 5-63-80 B.1. Section108 Application for permit
Exemptions for Application for permit – Technology and Service Changes
Section 108.2 repeats in subsection 1 the existing USBC exemption for installation of wiring and equipment, with only a new cross-reference. However, with changes in communications technology and service models, additional clarification to this section is necessary.
First, there is a reference in 13 VAC 5- 63-80.B.1 (ii) to “network powered broadband communications systems”. While “network powered broadband communications systems” represented state of the art CLEC telephone technology in 2003 when the VCTA requested this exemption, in 2017 it is no longer the prevalent technology, with several different technical options available. Striking “network powered”, and leaving “broadband communications systems”, would update this provision properly.
Secondly, while equipment and wiring of communications systems are generally exempt, there is an exclusion for “a component” of nine categories of fire and smoke alarm and door control systems.
The market reality is that today consumers want “whole house” control systems allowing them to remotely monitor and access a variety of functions in a home, including door controls, and with any fire alarm system connected to the whole house monitoring. The language in the regulation that an exemption for wiring and equipment does not apply to “a component” of a fire monitoring system or door control system is less than clear. If a new whole house monitoring system is connected to an existing fire alarm system, or a remote control door lock system is in the whole house monitoring system, that should not result in a loss of exemption for the entire system.
The National Fire Code has requirements for telephone line monitoring of fire alarm systems (see NFPA 72 summary attached as Exhibit B), and that exception, and a clarification of “component” need to be added.
13 VAC 5-63-80. B.1. should therefore be revised and updated as follows to reflect these points:
1. Installation of wiring and equipment that (i) operates at less than 50 volts, (ii) is for network powered broadband communications systems, or (iii) is exempt under Section 102.3(1) or 102.3(2), except when any such installations are located in a plenum, penetrate fire rated or smoke protected construction or are a component of any of the following:
1.1. Fire alarm system,
1.2. Fire detection system,
1.3. Fire suppression system,
1.4. Smoke control system,
1.5. Fire protection supervisory system,
1.6. Elevator fire safety control system,
1.7. Access or egress control system or delayed egress locking or latching
system,
1.8. Fire damper,
1.9. Door control system.
Installation of wiring and equipment shall not be deemed to be a component of items 1.1-1.9 when it is i) compliant with NFPA 72 national requirements for telephone lines, as the same may be updated, or ii) is a part of a whole house or whole building monitoring system in which any of items 1.1-1.9 are one of multiple components monitored and controlled, or to which items 1.1-1.9 may be connected.
The text of all suggested USBC changes is attached as Exhibit A.
IV. CONCLUSION
The VCTA urges the BHCD not to delay acting upon these suggestions until the next round of USBC rulemakings, but to modernize and clarify these provisions of the USBC now, to reflect current communications technology and regulatory framework, and to prevent unnecessary disputes between cable CLECs and other communications providers on the one hand, and local building inspection departments on the other hand. The VCTA therefore requests that the BHCD incorporate the VCTA’s suggested changes in this round of its USBC rulemaking.
The VCTA appreciates the opportunity to submit these comments and to help ensure that the Virginia USBC reflects current communications technology and practices.
Respectfully submitted,
VIRGINIA CABLE TELECOMMUNICATIONS
ASSOCIATION
By: _s/s Peter E. Broadbent, Jr.,/
Peter E. Broadbent, Jr.
Counsel
May 26, 2017
Peter E. Broadbent, Jr.
Christian & Barton, L.L.P.
909 East Main Street
Richmond, Virginia 23219
(804) 697-4109
VSB No. 15962
EXHIBIT A
USBC CHANGES RECOMMENDED BY THE VCTA
13 VAC 5-63-20. Section 102
D. Section 102.3 Exemptions. The following are exempt from this code:
1.1 The equipment, wiring and supporting structures are owned or controlled by a provider of publicly regulated utility service or a franchised cable television operator or its affiliates. In the case of communications facilities, only ownership or control of the external physical features or elements of any wiring or equipment by a provider of publicly regulated utility service or a franchised cable televisions operator or its affiliates shall be required.
13 VAC5-63-20. Section 102
D. Section 102.3 exemptions. The following are exempt from this code:
2. Electrical equipment, transmission equipment, and related wiring used for wireless transmission of radio, broadcast, telecommunications or information service, and supporting structures in the form of traditional utility poles, in accordance with all of the following conditions:
2.1. Buildings housing exempt equipment and wiring and structures (other than traditional utility poles) supporting exempt equipment and wiring shall be subject to the USBC.
13 VAC5-63-80 Section 108.2
B. Section 108.2 Exemptions from application for permit
1. Installation of wiring and equipment that (i) operates at less than 50 volts, (ii) is for network powered broadband communications systems, or (iii) is exempt under Section 102.3(1) or 102.3(2), except when any such installations are located in a plenum, penetrate fire rated or smoke protected construction or are a component of any of the following:
1.1. Fire alarm system,
1.2. Fire detection system,
1.3. Fire suppression system,
1.4. Smoke control system,
1.5. Fire protection supervisory system,
1.6. Elevator fire safety control system,
1.7. Access or egress control system or delayed egress locking or latching
system,
1.8. Fire damper,
1.9. Door control system.
Installation of wiring and equipment shall not be deemed to be a component of items 1.1-1.9 when it is i) compliant with NFPA 72 national requirements for telephone lines, as the same may be updated, or ii) is a part of a whole house or whole building monitoring system in which any of items 1.1-1.9 are one of multiple components monitored and controlled, or to which items 1.1-1.9 may be connected.
#214905
Part 3
MFVN (telco POTS) MFVN (telco digital) MFVN (telco VoIP) MFVN (cable VoIP) PSTN Alarm Panel Alarm Panel Alarm Panel Alarm Panel NFPA 72 2010 defines the performance requirements required at the service interface or demarcation point RJ-11 or RJ-31x jack
Key Benefits
• For NFPA: Aligns expectations of all affected stakeholders: AHJs, alarm companies, voice providers, consumers and businesses
• For AHJs: Eliminates the need to evaluate voice technologies and develop own policies; creates clear accountability
• For alarm companies: Provides clear system design criteria that is uniform across all markets
• For voice providers: Provides clear expectations of what is required for fire alarm monitoring
• For customers: Provides cost saving from voice competition, eliminate additional costs and delays for design workarounds and further approvals, eliminate finger-pointing by alarm and voice providers.
SUMMARY OF NEW
NFPA 72® NATIONAL
REQUIREMENTS FOR
TELEPHONE LINES
NFPA 72 Model for MFVN Compliance
Managed Facilities-based Voice Networks and the National Fire Code – A Summary of New Rules Approving the Use of Non-Traditional Telephone Lines For Fire Alarm Monitoring
FAQs
• Isn’t 24-hour standby power required since NFPA requires it, and "POTS" lines provide it? No. NFPA has allowed 8-hour standby power for voice lines since the 1980’s, when telcos began using 8 hour batteries in the remote terminal equipment that provides dialtone to homes and commercial buildings. Today, over 50% of all telco lines, nationally, are provided from these remote terminals.
• Is UL listing required for voice equipment attached to alarm equipment? Yes. NFPA 72 requires that both communications and fire alarm equipment "be UL listed for its purpose". On-premises voice equipment is UL listed under Telecommunications (UL® 60950). Fire alarm equipment is UL listed under Fire Alarm Systems (UL® 864).
• How can AHJs or alarm companies confirm that a voice provider meets these requirements? These parties may contact the voice provider to confirm the service conforms to all NFPA requirements.
CableLabs® has been actively collaborating with NFPA since 2005 to address this important issue.
For further information, please email:
alarm-issues@cablelabs.com
For further information, see:
http://www.nfpa.org/faq.asp?categoryID=925
http://www.nfpa.org/displayContent.asp?categoryID=182
http://en.wikipedia.org/wiki/Managed_Facilities-based_Voice_Network
858 Coal Creek Circle | Louisville, CO 80027
303.661.9100 | www.cablelabs.com
NFPA 72 is available from:
www.nfpa.org
Part IV
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
Streamlining Deployment of Small Cell ) WT Docket No. 16-421
Infrastructure by Improving Wireless Facilities )
Siting Policies )
)
Mobilitie, LLC Petition for Declaratory Ruling )
REPLY COMMENTS OF NCTA – THE INTERNET & TELEVISION ASSOCIATION
Steven F. Morris
Jennifer K. McKee
NCTA – The Internet & Television
Association
25 Massachusetts Avenue, NW – Suite 100
April 7, 2017 Washington, D.C. 20001-1431
TABLE OF CONTENTS
INTRODUCTION AND SUMMARY ............................................................................................1
I. THE COMMISSION SHOULD TAKE A HOLISTIC APPROACH TO PROMOTING DEPLOYMENT, RATHER THAN LOOKING AT SMALL CELL ISSUES IN ISOLATION ..........................................................................................2
II. THE COMMISSION SHOULD INTERPRET SECTION 253(C) IN A MANNER THAT PROMOTES A LEVEL PLAYING FIELD AND AVOIDS EXTREME DELAYS OR BURDENS ON ANY TYPE OF DEPLOYMENT ......................................6
A. Requiring a Separate Broadband or Telecommunications Franchise or Right-of-Way Fees on a Franchised Cable Operator is Unreasonable............................................................................................................6
B. Cable Franchise Obligations Should Be a Relevant Consideration in Assessing Whether State or Local Right-of-Way Obligations are Discriminatory .......................................................................................................10
CONCLUSION ..............................................................................................................................11
Before the
FEDERAL COMMUNICATIONS COMMISSION
Washington, D.C. 20554
In the Matter of )
)
Streamlining Deployment of Small Cell ) WT Docket No. 16-421
Infrastructure by Improving Wireless Facilities )
Siting Policies )
)
Mobilitie, LLC Petition for Declaratory Ruling )
REPLY COMMENTS OF NCTA – THE INTERNET & TELEVISION ASSOCIATION
NCTA – The Internet & Television Association (NCTA) submits these reply comments in the above-referenced proceeding.1 The Commission’s goal should be to promote the deployment of all types of broadband networks, regardless of the technology used. Accordingly, the Commission should interpret Section 253 in a manner that avoids extreme delays or burdens that would have the effect of prohibiting deployment, irrespective of the technology used by the provider.
1 Public Notice, Comment Sought on Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting Policies, WT Docket No. 16-421, DA 16-1427 (rel. Dec. 22, 2016) (Notice); Mobilitie LLC Petition for Declaratory Ruling, WT Docket No. 16-421 (filed Nov. 15, 2016) (Mobilitie Petition).
INTRODUCTION AND SUMMARY
The record in this proceeding demonstrates that all types of providers are planning significant new deployment of broadband facilities. Most of these networks will provide a variety of services using facilities that incorporate both wireline and wireless technology. Accordingly, the Commission should ensure that its efforts to streamline broadband deployment obligations encourage all providers to deploy new facilities, regardless of technology, rather than limiting its focus solely to the small cell issues addressed in the Mobilitie petition and Wireless Telecommunications Bureau notice. 2
To that end, there are two concrete steps the Commission can take now under Section 253 to address specific practices that burden and delay deployment. First, the Commission should declare that where a franchised cable operator already has the legal authority to construct and operate facilities in the right-of-way, it is unreasonable for a state or local government to then require that provider to obtain additional licenses or authority (or pay additional right-of-way fees) in order to offer broadband services over those authorized facilities. Second, the Commission should clarify that, when assessing whether state or local government fees for the use of rights-of-way are "competitively neutral and nondiscriminatory" within the meaning of Section 253(c), the inquiry should look beyond fees applicable to specific network technologies and take into account the full scope of fees and obligations already borne by providers, including any revenue-based franchise fees.
I. THE COMMISSION SHOULD TAKE A HOLISTIC APPROACH TO PROMOTING DEPLOYMENT, RATHER THAN LOOKING AT SMALL CELL ISSUES IN ISOLATION
The record establishes that massive deployment of new broadband facilities is expected over the next decade.2 Most of these new or upgraded networks will incorporate both wireless and wireline equipment and be capable of providing a range of services subject to a variety of regulatory regimes. For example, the record makes clear that densification of wireless networks will require significant new deployment of both wireless and wireline equipment because "the
2 See, e.g., Wireless Infrastructure Association (WIA) Comments at 2 (FCC’s commitment to a "regulatory environment that promotes wireless infrastructure deployment" is "more necessary than ever, as market developments converge to require intensified infrastructure deployment."); CTIA Comments at 2 ("5G will require dense wireless networks, deployment of hundreds of thousands of new small cells, and expanded backhaul and transport facilities to provide needed capacity and coverage."); Competitive Carriers Association (CCA) Comments at 5 ("One study estimates that as much as $275 billion will be invested over the next seven years; $93 billion is expected to be spent on construction, with the rest allocated toward network equipment, engineering, and planning."); NTCA Comments at 3 ("Broadband providers of all kinds continue to invest heavily in their networks to help ensure they are prepared to me the customer demands of the future."). 3
backhaul and transport facilities required to connect small cells with core networks and provide customers with reliable Internet connectivity need to be located in ROWs."3 As NTCA explained, "5G networks are predominantly landline deep fiber networks, with only a very small portion of their network using a wireless technology."4
3 CTIA Comments at 2
4 NTCA Comments at 3.
5 See, e.g., FierceCable, Cable Capex: Comcast, Charter to Ramp Up Network Spending for Combined $16B Outlay in 2017 (Mar. 23, 2017, at http://www.fiercecable.com/cable/cable-capex-top-ops-comcast-and-charter-stabilize-cpe-spending-but-ramp-up-network; LightReading, Altice Plans FTTH For Entire US Footprint (Nov. 30, 2016), at http://www.lightreading.com/gigabit/fttx/altice-plans-ftth-for-entire-us-footprint/d/d-id/728657.
6 See, e.g., Fortune, Expect Heavy Combat Between Cable and Wireless in 2017 (Dec. 29, 2016), at http://fortune.com/2016/12/29/heavy-combat-cable-wireless/.
7 See, e.g., CTIA Comments at 2 ("The tremendous promise of 5G is, however, threatened by a growing web of local siting restrictions and requirements that delay, discourage, or outright block the new infrastructure needed to accommodate the public’s growing demand."); CCA Comments at 8 ("As evidenced by these examples, state and local siting requirements too often slow deployment significantly or halt broadband projects entirely. Even though some states and localities act promptly and correctly, the aggregate impact of those that do not greatly stifles deployment by carriers of all sizes, and cries out for informed Commission action to reduce state and local barriers to broadband deployment."); NTCA Comments at 4-5.
Similarly, cable operators have plans to upgrade their hybrid-fiber coax networks as well as expand their wireless capabilities. The largest cable operators all have announced that they will be upgrading their wireline networks to include more fiber deployment, including some operators’ plans to move to a fiber-to-the-premises service.5 Cable operators also are continuing to explore wireless options as well, using both licensed and unlicensed spectrum.6
Regardless of the technologies they use, providers of all types see this new deployment as a huge opportunity that could be constrained by certain overzealous regulation of access to public rights-of-way.7 The Mobilitie petition seeks to address some of these concerns through interpretation of key provisions in Section 253 of the Act, and the Public Notice issued by the Wireless Telecommunications Bureau identifies additional areas where federal guidance may 4
help streamline the deployment process, particularly with respect to small cell deployment.8 Separately, the Commission will consider proposals at its April agenda meeting to open two proceedings to consider ways in which it might streamline the deployment process for wireline and wireless infrastructure respectively.9
8 Mobilitie Petition at 23-35; Notice at 8-14.
9 See Blog of Chairman Pai, Infrastructure Month at the FCC (Mar. 30, 2017).
10 Mobilitie Comments at 1 ("Local governments that erect regulatory barriers to advanced broadband networks forget their charter to serve their citizens. They deprive citizens, visitors, schools, organizations and businesses of the benefits that broadband can deliver. Mobilitie urges the Commission to take immediate, comprehensive actions to remove the regulatory barriers that are obstructing deployment of advanced wireless broadband networks."); WIA Comments at 6 ("WIA members have uniformly reported on the epidemic of significant delays experienced in jurisdictions throughout the country when seeking to deploy small wireless facilities in the public right-of-way.").
11 NTCA Comments at 4 ("Both wireline and wireless providers face challenges in gaining reasonable and timely access to federal and municipal rights-of-way. NTCA’s members report that some localities refuse to negotiate ROW access agreements, or needlessly extend the negotiating process. ROW and pole attachments may be looked at as revenue generating and fees for access may be far removed from the cost of providing access.").
Concerns have been raised in the record that certain problematic actions by state and local officials could undermine the Commission’s broadband objectives absent expansive federal intervention.10 Although most of the focus is on wireless deployment, NTCA correctly points out that wireline providers may face similar obstacles.11
In the face of this record, the challenge for the Commission is to streamline deployment requirements where warranted without unduly constraining state and local management of the public rights-of-way or improperly placing a thumb on the scales in favor of one technology or one class of providers over others. NCTA supports Commission efforts to eliminate extreme delays and burdens on deployment, but we encourage the agency not to focus exclusively on small cell deployment. Instead, the Commission should consider right-of-way issues in a more holistic manner that considers the interests of all providers, both new entrants and existing providers, and all types of technologies, both wireless and wireline. 5
In applying this holistic approach, the Commission should account for the fact that many states already are considering legislation that would address small cell deployment issues. Over the past year, bills addressing small cell deployment issues have been enacted in three states (Arizona, Kansas, and Ohio), passed by the legislature in two more (Colorado and Virginia), and are under consideration in 16 additional states.12 Recent reporting suggests that many states are making progress in identifying solutions that balance the respective interests of all the parties involved.13 The Commission generally should be encouraging such efforts where they will promote new deployment without disfavoring existing providers, while leaving room for federal intervention that may be necessary to remove unwarranted or discriminatory regulation as described in the next section.
12 Small cell bills have been introduced in Arkansas, California, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Minnesota, Missouri, Nebraska, New York, North Carolina, Rhode Island, Texas, and Washington.
13 Communications Daily, Municipalities, Industry Find Compromise on State Small-Cells Bills (Mar. 23, 2017) at 9 ("Expect ‘more instances where locals and industry sit down and try and work this stuff out’ [NATOA Executive Director Steve Traylor] emailed Wednesday. ‘There is still a lot of misunderstanding about 5G, the IoT, what densification means, what’s going to happen to rural folks, etc. I think sitting down at the table helps to clear up a lot of the confusion – on both sides.’").
14 Public Notice, GN Docket No. 17-83, FCC Announces the Membership and First Meeting of the Broadband Deployment Advisory Committee, DA 17-328 (rel. Apr 6, 2017).
As a process matter, the Commission has taken a number of steps that are conducive to the type of holistic analysis these issues require. For example, the decision to open new proceedings for both wireline and wireless infrastructure will provide parties an opportunity to raise the fully range of right-of-way issues affecting broadband deployment, although it will be critically important for these two proceedings to be tightly coordinated, rather than proceeding in separate silos with separate personnel. It also will be important for the Commission to incorporate input from the Broadband Deployment Advisory Committee (BDAC) before adopting any new rules.14 The BDAC has a roster of experts representing all the affected parties 6
and therefore should be well situated to offer input to the Commission on the issues presented in this docket.
II. THE COMMISSION SHOULD INTERPRET SECTION 253(C) IN A MANNER THAT PROMOTES A LEVEL PLAYING FIELD AND AVOIDS EXTREME DELAYS OR BURDENS ON ANY TYPE OF DEPLOYMENT
The Mobilitie petition seeks a declaratory ruling from the Commission interpreting various provisions in Section 253(c) of the Act. In particular, Mobilitie asks the Commission to find that certain fees that have the effect of prohibiting deployment are generally not "reasonable" and "nondiscriminatory" for purposes of that section.15 As noted above, the Commission’s goal should be to promote broadband deployment by all types of providers regardless of technology.16 Below we address specific types of state and local requirements that the Commission should use this opportunity to declare unreasonable and discriminatory for purposes of Section 253(c), as well as considerations that should guide the Commission’s inquiry with respect to other practices and requirements.
15 Mobilitie Petition at 24-34.
16 As NTCA explains, "[p]olicies in this area should not favor one class of providers over another and should ensure that private operators are not unduly disadvantaged by an uneven playing field as it relates to government-owned broadband networks." NTCA Comments at 8.
A. Requiring a Separate Broadband or Telecommunications Franchise or Right-of-Way Fees on a Franchised Cable Operator is Unreasonable
Certain types of fees generally are not reasonable for purposes of Section 253(c). In particular, for companies with existing authority to place equipment in the public right of way (e.g., a franchised cable operator), no additional authority or fees should be required for activities or equipment that does not place any significant new burden on the right-of-way (e.g., providing a new service over existing plant or overlashing on existing strand). Particularly where a cable 7
operator already pays (through its cable franchise fee) for the right to access and utilize the public right-of-way, the addition of broadband or telecommunications services does not impose any additional maintenance or regulatory costs and should not be treated by state or local governments as a revenue-generating opportunity, as such measures needlessly drive up consumer costs, disincentivize broadband adoption, and burden deployment.
Declaring such additional fees unreasonable when applied to providers with existing cable franchises is fully consistent with the Commission’s statement in the Open Internet Order that reclassification of broadband Internet access service (BIAS) should not serve as justification to require a franchised cable operator to "obtain an additional or modified franchise in connection with the provision of [BIAS], or to pay any new franchising fees in connection with provision of such services."17 This approach is also good policy. Cable franchises generally contain construction provisions, fees and other protections for the franchisor, and thus already protect legitimate state and local government interests in regulating access to the public rights-of-way and recovering their costs of such regulation. The deployment of new services over franchised cable systems serves the Commission’s goal of furthering broadband deployment, while presenting no threat to the existing ability of state and local governments to protect their interests through the operators’ franchise agreements.
17 Protecting and Promoting the Open Internet, GN Docket No. 14-28, Report and Order on Remand, Declaratory Ruling, and Order, 30 FCC Rcd 5601, 5804, ¶ 433 n. 1285 (2015).
18 City of Eugene v. Comcast of Oregon II, 359 Or. 528 (2015).
NCTA is particularly concerned about the implications of a 2016 decision by the Oregon Supreme Court rejecting a challenge to the broadband license fee imposed by the City of Eugene.18 On top of the five percent franchise fee on video revenue, the City of Eugene has imposed a broadband license fee of seven percent of telecommunications (including broadband)
Part V
revenues,19 even though adding broadband services to the traditional cable video plant imposes no new burden on the rights-of-way. The city reasons that neither the existing cable franchise nor the franchise provisions in Title VI provided Comcast with a preexisting right to use the public rights-of-way for telecommunications services using facilities it has already deployed.20 The court agreed and found that this broadband license fee was paid in return for a specific privilege granted to Comcast and therefore not considered a tax that would be barred by the Internet Tax Freedom Act.21 Of particular relevance here, as part of that analysis the court found that the Open Internet Order language cited above was somehow inapplicable because the use of the term "franchising fees" meant the Commission only intended to preclude additional fees on cable service.22 The court separately found that the application of the seven percent broadband license fee did not violate the five percent cap on franchise fees in Title VI of the Communications Act.23
19 Id. at 534.
20 Id. at 536.
21 See id. at 539-55.
22 Id. at 554-55.
23 Id. at 555-58.
24 The Oregon court expressly stated that its decision did not reach the question of whether the Eugene ordinance was valid under Section 253, so that question remains open for resolution by the Commission. Id. at 553 n.14.
The Commission should send a strong signal that the Oregon Supreme Court misinterpreted the language in the Open Internet Order and Title VI and that the Commission does not support ordinances that materially inhibit the provision of broadband or telecommunications services by imposing excessive fees and discriminating among providers of broadband services.24 The Eugene ordinance’s imposition of a license fee of seven percent of telecommunications (including broadband) revenues – on top of the franchise fee equal to five 9
percent of cable revenues – needlessly adds to the retail cost of broadband service, impeding deployment and adoption, and is not justified by any additional cost or burden incurred by the city.25 Absent a clear statement from the Commission that such an approach would be presumed to materially inhibit deployment and be neither "fair and reasonable" nor "competitively neutral and nondiscriminatory" under Section 253, we are concerned that other jurisdictions could follow this path and impose new fees on broadband services.26
25 In addition to the 7% broadband license fee, Eugene imposes a 7% license fee and 2% registration fee on Comcast’s VoIP and Ethernet transport services, as well as its cellular backhaul services. Further deployment of the latter will be a crucial element in supporting the deployment of 5G.
26 A number of Oregon communities already are assessing other non-cable services, such as VoIP and Ethernet.
27 Decision Denying the Petition to Open a Rulemaking Proceeding to Extend the Right-Of Way Rules Adopted by Decision 16-01-046 to Cable Television Corporations, Decision 17-02-006 at 17-18 (Feb. 10, 2017).
28 See, e.g., New England Public Communications Council Petition for Preemption Pursuant to Section 253, Memorandum Opinion and Order, 11 FCC Rcd 19713, 19722, ¶ 21 (1996).
In addition to clarifying that additional fees are not permitted as a condition of providing broadband or telecommunications services over franchised cable systems, the Commission also should explain that franchised cable operators may not be required to obtain an additional local franchise or state certification to deploy facilities necessary for the provision of additional services. Cable operators have encountered this road block in the State of California, where the California Public Utilities Commission has determined that a cable operator must obtain certification as a facilities-based CMRS carrier before it may install wireless equipment on poles.27 Such a policy is at odds with Section 253(a) because it materially inhibits the ability of cable operators to deliver new and innovative wireless broadband services directly to the public in competition with existing wireless carriers, as well as offer competitive options for small cell and other infrastructure solutions to CMRS providers. Nor is it consistent with the Commission’s precedent interpreting the savings clause in Section 253(b).28 The Commission 10
should make clear that once a provider has permission to deploy facilities in the public right-of-way, a state or local government may not require separate permission for facilities necessary to provide telecommunications or broadband services.
B. Cable Franchise Obligations Should Be a Relevant Consideration in Assessing Whether State or Local Right-of-Way Obligations are Discriminatory
The Mobilitie petition also asks the Commission to find that "competitively neutral and nondiscriminatory" for purposes of Section 253(c) means "charges imposed on a provider for access to rights-of-way that do not exceed the charges that were imposed on other providers for similar access to the rights-of-way."29 NCTA generally agrees with this principle, although applying it in practice may present challenges.
29 Mobilitie Petition at 32.
The difficulty in considering whether any particular obligation has been imposed in a nondiscriminatory manner for purposes of Section 253(c) is that different types of entities may have different rights and obligations in connection with their use of the rights-of-way. For example, cable operators and wireless providers historically have used different technology and been subject to different regulatory regimes. But as noted above, increasingly these companies will be competing for the same customers by offering the same services using similar networks. Accordingly, any assessment of whether fees imposed on wireless providers are "competitively neutral and nondiscriminatory" for purposes of Section 253(c) should consider the full scope of rights and obligations faced by other providers, including the fact that cable operators are subject to revenue-based franchise fees that are paid as a condition of using the public rights-of-way. 11
CONCLUSION
For all the reasons explained above, NCTA encourages the Commission to take a holistic approach to right-of-way management that encourages deployment by all providers and all technologies, rather than narrowly focusing on small cell deployment. The Commission should focus on eliminating practices that create undue delays or burdens on deployment by any type of provider. In particular, the Commission should make clear that localities may not require a franchised cable operator to obtain an additional franchise or to pay additional fees in connection with the offering of broadband or telecommunications services or to deploy equipment that places no meaningful new burden on the public right-of-way.
Respectfully submitted,
/s/ Steven F. Morris
Steven F. Morris
Jennifer K. McKee
NCTA – The Internet & Television
Association
25 Massachusetts Avenue, NW – Suite 100
April 7, 2017 Washington, D.C. 20001-1431
As a citizen of Virginia and someone who has spent a career working on energy issues, I strongly urge Virginia to adopt the full 2015 International Energy Conservation Code, including the requirement for blower door testing. Failure to adopt the full code will harm Virginians as home buyers because their homes will be less efficient; will harm them as consumers because their costs of utility-supplied energy will be increased by unnecessary demand; and will harm them as residents whose air, water and climate will be harmed by avoidable energy combustion.
Permitting builders to use "visual" testing in place of blower door testing is equivalent to allowing car manufacturers to rely on visual inspection of brakes. It is meaningless, and the results will be hidden from the buyer by finished walls and insulation. They will experience potentially decades of higher energy costs as leaks require them to buy more energy and pay for costly repairs if they ever learn of leaks that should never have been built into a home. Those lifecycle costs are harmful and should be avoided. Looking only at "first costs" to a builder deprives consumers of the least cost solution to home-ownership or occupancy over the life of the home.
The Governor's Executive Order 57 and Energy Efficiency advisory committee have recognized the importance of improving building energy efficiency. Now is the time to do it with adoption of the full 2015 energy effficiency standards.
William Penniman, 2007 Upper Lake Dr., Reston, VA 20191