Infrastructure Order Says It Takes 'Balanced Approach,' Targets 'Outliers'
The FCC draft wireless declaratory ruling and order, circulated Wednesday, says it isn’t targeting most local state governments, but “outlier conduct persists.” Commissioner Brendan Carr announced Tuesday the item would get a vote at the commissioners’ Sept. 26 meeting (see 1809040056), which has seven other items on its tentative agenda (see 1809050056). Meanwhile, at least two petitioners asked the FCC to reconsider provisions approved 3-1 in August that pre-empt state and local legal barriers to deployment, including express and de facto moratoriums (see 1808020034).
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“Supporting the deployment of 5G and other next-generation wireless services through smart infrastructure policy is critical,” the draft order says: It takes a “balanced, commonsense approach, rather than adopting a one-size-fits-all regime.” The document cites complaints from tower companies and carriers about problems in some localities trying to build out small cells. “The legal requirements in place in” some state and local jurisdictions appear to be “materially impeding that deployment,” the FCC says. "Many local siting authorities are [apparently] not complying with our existing Section 332 shot clock rules.”
Carr said a recent Corning study (see 1808300033) shows a huge potential economic impact from the order. It “will save $2 billion in unnecessary costs and stimulate an additional $2.4 billion in infrastructure investment” and mean small cells that will cover 1.8 million more homes and businesses, Carr said.
The approach has support of some state officials, who say “deducing high regulatory costs and delays in urban areas would leave more money and encourage development in rural areas.” The draft argues the approach the FCC takes should address local and state concerns: “Our specialized deployment categories, in conjunction with the acknowledgement that in rare instances, it may legitimately take longer to act, recognize that the siting process is complex and handled in many different ways. ... Our approach tempers localities’ concerns about the inflexibility” of deemed-granted provisions earlier proposed by the FCC “because the new remedy we adopt here accounts for the breadth of potentially unforeseen circumstances that individual localities may face and the possibility that additional review time may be needed in truly exceptional circumstances.”
“Courts have recognized that the Commission has authority to interpret Sections 253 and 332" of the Telecom "to further elucidate what types of state and local legal requirements run afoul of the statutory parameters,” the FCC says.
Concerns
The August moratoriums declaratory ruling is under attack.
It's “internally inconsistent, arbitrary and capricious in the extreme, and ultimately, unconstitutional,” the Smart Communities and Special Districts Coalition petitioned in docket 17-79. “The Declaratory Ruling was an improper vehicle for actions of this type, creates uncertainty rather than resolving it, and fails to recognize that many moratoria in fact speed deployment.”
The ruling “inaccurately" describes "the scope of federal preemption (and the Commission’s authority to invoke such preemption) of state and local-decision-making regarding telecommunications facilities and services,” New York City said.
Some have concerns about the proposed order.
It could "result in the type of digital divide” that San Jose Mayor Sam Liccardo (D) “warned against when he left” an FCC committee, emailed Best Best local telecom lawyer Gerard Lederer. “The greatest casualty of this proposed order could be the creative solutions a number of public-private partnerships were developing to bring services to consumers.”
San Jose reported on a call between Liccardo and Carr to discuss “design standards, rights-of-way, shot clock and deemed-granted provisions.” Liccardo, frustrated with the work of the Broadband Deployment Advisory Committee, earlier quit the group (see 1804090013).
Order Backed
Several expressed general support for the new draft.
For the U.S. to lead the world in 5G, sound polices are needed to encourage wireless infrastructure investment,” said Jonathan Adelstein, president of the Wireless Infrastructure Association. “As promising as 5G is, it’s only as good as the infrastructure on which it’s deployed.” Betsy Huber, president of the National Grange, said that "small cells are the building blocks of the 5G network that will help improve the power of and access to high-speed Internet."
The National Association of Tower Erectors also endorsed the draft. It “takes the successful tenets of small cell deployment legislation that have been passed by some of the states and standardizes them in a manner that will provide a road map moving forward that is necessary to ensure more Americans are in a position to take advantage of broadband and 5G,” NATE said.
“One of the most severe impediments to achieving the national goal of increased wireless broadband deployment is the practice of many localities to charge high siting fees,” CTIA said. It included a Leonine Public Affairs report on deployment in states with small-cell laws.
Scott Bergmann, CTIA senior vice president-regulatory, urged the FCC to act. “To keep pace with the increased use of wireless data -- nearly quadrupling since 2014 -- and build out 5G networks, wireless providers will need to deploy roughly 800,000 small cells in the next few years,” Bergmann blogged.