LEGISLATION COMMITTEE
Meeting Date: September 11, 2023
Subject: Federal Legislation of Interest to Contra Costa County
Submitted For: Legislation Committee
Department: County Administrator
Referral No: 2023-07
Referral Name: Federal Update
Presenter: Paul Schlesinger and Jim Davenport, Thorn Run Partners
Contact: L. DeLaney, (925) 655-2057
Referral History:
The Legislation Committee regularly receives reports on federal legislation and budget matters of interest to the County and provides direction to staff and the County’s federal lobbyists.
Referral Update:
The County’s federal lobbyists from Thorn Run Partners, Mr. Paul Schlesinger and Mr. Jim Davenport, will attend the Committee meeting via Zoom to provide a report on these and other matters, including FEMA reimbursement for COVID-19 related Non-Congregate Shelter costs.
House Considering Local Authority Preemption Bill for Broadband Development Projects
As we have frequently described over many years, efforts to preempt local authority frequently crop up in Congress or during a particular Administration. Most recently, the House Energy and Commerce Committee passed the American Broadband Deployment Act of 2023 (H.R. 3557 <https://www.congress.gov/bill/118th-congress/house-bill/3557?q=%7B%22search%22%3A%5B%22H.R.+3557%22%5D%7D&s=1&r=1>) out of committee this summer. Among other things, H.R. 3557 would enact new restrictions on a variety of state and local land use and zoning authorities pertaining to the deployment of telecommunications infrastructure, including both wireless deployment and wireline deployment, as well as impose limitations on the ability for local governments to negotiate and renew cable franchise agreements. The bill passed on a party-line vote of 27-23.
This legislation continues the long-term trend in state and federal preemption impacting local governments on a wide range of issues. With the passage of the Bipartisan Infrastructure Law, permitting streamlining has seen increased focus for lawmakers from both parties and created an opportunity for further business-driven preemption. Therefore, some members of Congress have raised concerns that local government oversight will slow or increase the cost of infrastructure deployment and have introduced legislation to preempt that oversight.
The following provisions in H.R. 3557 are of concern for local government entities:
• Preemption of state and local zoning authority over the placement of wireless technologies, including towers, equipment, and small cells;
• Elimination of state and local government authority to manage public rights-of-way (ROW) by collecting fair market compensation for their use and management, and limiting ROW fees to ”actual, objectively reasonable costs";
• Enactment of shot clock rules and “deemed granted” provisions which place timelines for the review and approval of telecommunications projects; and
• Prohibition of state and local governments from revoking cable franchises.
It is unclear when H.R. 3557 may be scheduled for a floor vote by the full House. However, another bill that passed the markup with bipartisan support, the Spectrum Auction Reauthorization Act of 2023 (H.R. 3565 <https://www.congress.gov/bill/118th-congress/house-bill/3565>), will likely become a vehicle for other communications legislation.
WHERE THINGS STAND ON GOVERNMENT FUNDING. The Senate returns for legislative business on September 5 to kick off what is shaping up to be a hectic September session, headlined by the September 30 government funding deadline. While leadership has acknowledged that Congress needs to pass a continuing resolution (CR) to avert a shutdown, House and Senate leaders are not on the same page with respect to a number of issues in this year's government funding process. Notably, Speaker Kevin McCarthy (R-CA) is aiming to assuage some concerns raised by members of the conservative House Freedom Caucus by offering a stopgap funding bill into mid-November - earlier than the original target frame of early December that has the support of Senate Leaders Chuck Schumer (D-NY) and Mitch McConnell (R-KY).
Meanwhile, reports out of Capitol Hill suggest that the Senate could move first on a CR this month given some of the uncertainty as to how things will play out in the House. (See below.) Barring a flash of bipartisan cooperation between the two chambers, some form of government shutdown - either full or partial - cannot be ruled out at this time.
SENATE LOOKS FOR LEG UP ON HOUSE OVER GOVERNMENT FUNDING. Senate Democratic and Republican leaders are moving forward on a bipartisan plan for government funding with the hopes of placing pressure on House lawmakers to fall behind this approach. According to reports from Capitol Hill, Majority Leader Chuck Schumer (D-NY) plans to call up a "minibus" that would contain some of the more noncontroversial bills out of the Senate Appropriations Committee, including the measures for Agriculture-FDA and Military Construction-VA. Notably, Senate Minority Leader Mitch McConnell (R-KY) also offered support for addressing the Biden administration's supplemental funding request to shore up disaster relief aid, border security, and Ukrainian military and economic assistance.
• Context. These latest developments come as conservatives of the House Freedom Caucus continue to reiterate their demands for policy and spending concessions in exchange for their votes on government funding bills and a forthcoming continuing resolution (CR). As such, bipartisan cooperation will be needed in both chambers to ensure that the government is funded and that discretionary spending for fiscal year (FY) 2024 is not subject to a one percent cut - a dynamic that could further imperil Speaker Kevin McCarthy's (R-CA) standing with Freedom Caucus conservatives. The House will gavel back in next week with hopes of taking up additional FY 2024 spending bills, but it remains to be seen whether GOP leadership has the votes it needs within the scant four-seat majority.
WHAT TO WATCH FOR IN THE SEPTEMBER WORK PERIOD. In addition to keeping the government funded past September 30, Congress must address a number of "must pass" policies and programs that expire at the end of the month, including reauthorization measures for the Federal Aviation Administration (FAA), the 2023 Farm Bill, the Pandemic and All-Hazards Preparedness Act, and the National Flood Insurance Program (NFIP), among others. Lawmakers will also look to reach a compromise on a supplemental appropriations package to shore up disaster relief aid, border security, and economic and military aid for Ukraine, but the size and scope of this extra funding remains to be seen given some of the strong disagreements from House conservatives. Additionally, Leader Schumer reiterated <https://www.democrats.senate.gov/imo/media/doc/dear_colleague_9123.pdf> his desire to advance legislation on several key issues, including: (1) artificial intelligence (AI); (2) prescription drug costs and insulin pricing; (3) cannabis banking legislation; (4) the fiscal year (FY) 2024 National Defense Authorization Act (NDAA); (5) bank executive accountability; (6) rail safety legislation; and (7) kids' online safety.
Recommendation(s)/Next Step(s):
CONSIDER finding an “Oppose” position on H.R. 3557 consistent with the Board’s adopted 2023-24 Federal Legislative Platform policy “SUPPORT preservation of local government ownership and control of the local public rights-of-way and ensure reasonable compensation for their use,” or recommend a position of “Oppose” on H.R. 3557 to the Board of Supervisors.
ACCEPT the report on federal matters of interest to Contra Costa County and provide direction to staff and the County’s federal lobbyists, as needed.
Fiscal Impact (if any):