AT&T, Crown Castle Urge FCC to Tackle Impeding Localities

The FCC has authority to lower local barriers to wireless infrastructure deployment, AT&T and Crown Castle said in letters Friday in docket 17-79. "Particularly in states that have not passed small cell legislation, municipalities continue to impede the placement of small cell facilities in the rights of way (ROW) by charging excessive fees, refusing placement outright, and imposing other unreasonable barriers," AT&T wrote. It encouraged the FCC to "clarify the limits on a municipality’s authority to restrict wireless providers’ access to the ROW and ROW infrastructure." The agency is "authorized under Sections 253 and 332(c)(7) of the Communications Act to promote broadband services, and the Commission is well within its authority to interpret those statutes," AT&T said. The FCC should clarify that refusing to accept standard deployment, except in unusual circumstances, is "prohibition of service" restricted by those sections, the carrier said. So is imposing "unreasonable fees" to access ROW, it said. AT&T urged the FCC to adopt safe harbors including capping annual fees at $50 per small-cell facility. It sought a 60-day shot clock for reviewing small cells to be collocated on existing poles and a 90-day shot clock for small cells placed on new poles.

Crown Castle also invoked the two sections. "The FCC has ample authority to issue regulations addressing these barriers to wireless infrastructure deployment," the wireless tower owner said. The company cooperates with many jurisdictions, but some have created obstacles, it said. "A number of jurisdictions impose unreasonable fees and conditions on wireless facilities that are particularly inappropriate in the context of small cells, which are a fraction of the size of macro towers and typically have minimal impact on the surrounding area," it said. "The fees in particular, which lack any rational relation to the cost of approving applications or maintaining the ROW, can make deploying networks to serve consumers and businesses in these jurisdictions cost prohibitive." Other jurisdictions discriminate, with harsher treatment of wireless facilities than wireline, Crown Castle said. Some municipalities "unjustifiably prohibited" or imposed moratoriums keeping out small cells, it said.

Earlier last week, American Tower Corp. met with Commissioners Jessica Rosenworcel and Mike O'Rielly, it said in a notice posted Friday. "ATC expressed its hope that the Commission will strike a reasonable and appropriate balance between the need to deploy infrastructure to facilitate 5G by streamlining local reviews and reducing costs while preserving the right of local communities reasonably to protect local land use values."

A state court reversed Pennsylvania commissioners' 3-2 ruling that DAS operators aren't utilities requiring state certification (see 1703020066). Thursday's Pennsylvania Commonwealth Court opinion agreed with Crown Castle that the PUC erred in deciding it had no jurisdiction. "While the facts may be quite technical, the legal principles involved are straightforward," wrote Judge Renée Cohn Jubelirer. The PUC's 2017 interpretation isn't supported by statutory language, court precedent, other state commission determinations or the 2014 FCC wireless infrastructure order, she said. The PUC granted state certificates to DAS operators as competitive access providers 2005-2015 based on a prior interpretation of the statute, the judge said. Deference usually is given to commission interpretations, but this one "deviates from its historical interpretation … and, as such, is not entitled to much deference," she said. "There has been no change in the Code since the Commission began granting Certificates to DAS network operators in 2005." The agency conflated commercial mobile radio services of DAS operators' customers with transport services of the operator, Jubelirer said.

Pennsylvania municipal associations, amici in the case, disagreed with the ruling and said they will "continue to work through the Courts and the PA General Assembly to preserve the rights of local communities to manage wireless towers and antennae in the public rights-of-way." Crown Castle didn't comment. The commission is reviewing the decision, a spokesman said Friday.