Pro-5G House Communications Hearing to Include State, Local Pre-Emption Debate

Subcommittee Republicans aim for the hearing “to be more educational than anything,” a House GOP aide said. “Everybody's talking about 5G, everybody's interested in 5G,” the aide said. “But not a lot of people understand what it is or what it means. So we're looking to talk the promise of 5G but given our witness list, we can also explore what are going to be the challenges.” A House Communications GOP staff memo notes potential hurdles, including spectrum reallocation and work to harmonize international standards at the ITU and 3rd Generation Partnership Project on what constitutes 5G.

The memo also highlights the need to pre-empt “piecemeal state and local regulations spread across 3,000 counties and 20,000 incorporated places -- all of which may require different regulations.” It “will be difficult to deploy small cells efficiently at scale without consistent and reasonable standards in relation to state and local siting fees, applications, and access to public rights-of-way, as well as reform to provide more flexibility to requirements under the federal National Environmental Policy Act and the National Historic Preservation Act,” the memo said. Proposals for pre-emption, including the Thune-Schatz draft bill and S-1988, likely will come up, but Republicans aren't going into the hearing with an agenda for specific legislation at this point, the aide said.

Democrats are likely to intersperse pro-5G questions with pre-emption and tribal sovereignty concerns, a House Democratic aide said. “I don't think you're going to hear anyone get up and say 'new wireless technologies are awful things.'” But “it's troubling to them when city governments are being told that they don't have the right to decide how they run their city,” the staffer said. Democrats are likely to raise concerns about Thune-Schatz and S-1988, with concerns about the latter focusing on potential exemptions from NEPA and NHPA reviews. “We're walking into a political environment where these blanket exemptions are coming up constantly” in legislation, the Democratic aide said.

American Action Forum Director-Technology and Innovation Policy Will Rinehart will watch closely for what members say on pre-emption, along with “other substantive issues” affecting 5G, he said. It will be interesting to see how much emphasis there is on international harmonization “and playing that against an urge for the U.S. to move quickly because Europe's going to be late getting to the table on this,” said a Democratic telecom lobbyist. “I think everyone will agree there's a real opportunity here.”

Wireless Infrastructure Association President Jonathan Adelstein, 5G Americas President Chris Pearson and Brattle Group wireless and wireline consultant Coleman Bazelon, in written testimony, recommended congressional action to improve conditions for 5G deployments. Congress and the FCC “need to speed the approvals of permits and applications so that companies can make the needed 5G investments,” Adelstein says: “Congress can look at Federal pole attachment rules that promote the deployment of broadband access and the new technologies that enable it, while providing fair treatment for pole owners,” including by providing “greater national certainty and clarity with respect to the rights of wireless attachers” in local jurisdictions that haven't fully adopted Congress' revamp of pole attachment rules.

Congress should look to pre-empt state and local “barriers to broadband deployment that could prevent the full deployment of 5G and provide more flexibility in the siting process for wireless deployments" on federal lands, Adelstein says. Support comes from 5G Americas for “establishing national standards for the siting of small cells needed for 5G network densification,” Pearson said: Congress should “consider how 5G services can be harmonized internationally, even if identical allocations cannot be used everywhere,” including “specific allocations within a broader globally harmonized and licensed band that accounts for the needs in various regions or countries.”

San Jose Chief Innovation Officer Shireen Santosham is expected to speak against federal pre-emption of local laws seen as impediments to 5G deployment in rights of way, in part by invoking California Gov. Jerry Brown's (D) October veto of small-cells bill SB-649, which local governments opposed (see 1710160049). “Although we actively embrace new technology, the rights of local governments and communities to manage the rights of way must be preserved to benefit the public broadly,” Santosham says in testimony. “Pre-emption of the right for local governments to charge for access to the public rights of way also takes away the ability to incentivize build outs in low-income or otherwise marginalized areas.”

Bazelon's testimony focuses on mid-band spectrum, saying “anything that can be done” on Capitol Hill “to smooth the transfer of spectrum in the band “is helpful." He notes the Spectrum Auctions Deposits Act (HR-4109) as a way to end impediments to the FCC holding additional spectrum auctions. The legislation would require bidders' deposits in future spectrum auctions to be placed with the Treasury Department (see 1710250026). Passage “will facilitate future auctions and the Spectrum Reallocation Fund should help provide frequencies for those auctions,” Bazelon says. Indiana Biosciences Research Institute CEO David Broecker will focus on 5G's importance in the development of the Massive Internet of Health Things, which his testimony says “will connect patients to their physicians through telemedicine and virtual reality” interventions.