Rosenworcel Slams Part of Draft 5G Wireless Infrastructure Order; Carr Defends as Cities Attack

“We’re still taking a look, that’s how those things go,” Rosenworcel said of the draft infrastructure order. The FCC needs to figure out how to harmonize siting rules, she said. “We’re going to have to figure out how to incentivize states and localities to be our partners in this process. I’m not sure that a few bureaucrats telling them what they can and can’t do in their backyard is going to expedite that process.” She warned of pending litigation. Localities have made such threats, and continue en masse opposing the draft (see 1809190030).

“The FCC is on the cusp of issuing a declaratory ruling that would invalidate so many efforts in so many cities and towns across the country,” Rosenworcel said. That won’t “expedite anything except a trip to the courts,” she said. The FCC can put forward guidelines and boundaries, she said. “More important than the agency issuing these decrees from on high is that we figure out how to incentivize cities and towns to engage in those best practices,” she said. “Carrots are going to work much better here than sticks.”

Rosenworcel criticized the FCC Broadband Deployment Advisory Committee for not including more local and state officials in discussions of speeding deployment (see 1801250049). “Gather people around the table, terrific way to get something done,” she said. “If you want to build consensus, you need stakeholders of all stripes and I think in that regard that effort failed.”

New tariffs on $200 billion in imports from China (see 1809170053) are “a terrible thing for the future of 5G,” Rosenworcel said. Antennas, circuit boards, switches, routers and other network equipment are covered, she said. “By the end of the year, we will have a 25 percent tax on all of those piece parts that are so necessary to deploy 5G networks,” she said. “This is not theoretical, this is real. … It’s a problem and it will harm our ability to lead.”

Rosenworcel said she isn't satisfied with the number of auctions announced so far by Chairman Ajit Pai. “We are still just occasionally announcing auctions,” she said. “I don’t think that’s acceptable any more as we move to a 5G world.” She questioned whether the FCC will have a mid-band spectrum auction before 2020.

“It’s important that the United States make an effort to lead” on 5G, Rosenworcel said. “The smartphone revolution happened here on our shores and the application economy got its start here.” The “evidence suggests” other nations are leading, she said. South Korea auctioned off high-band spectrum and South Korea, Italy, the U.K. and Spain are auctioning off mid-band spectrum ahead of the U.S., she said. “We have our work cut out for us.”

Carr's Defense

Carr, who has been making a full-court press this week in support of the order (see 1809180038), said it makes the right moves at the right time.

“Being first in 5G is about economic dominance in the technology space for the next decade,” the commissioner said: “The U.S. is moving full-steam ahead” with more spectrum dedicated to 5G than anywhere else. Later in the day, he also defended the order: 1809200032.

Infrastructure is key to 5G, but the FCC is still weighing comments it has received as a vote approaches, Carr said. “Several dozen” state and local officials have told the FCC the same thing, he said. “These high fees charged in a couple of must-serve, big cities are pulling in the capital that otherwise could be deployed in their communities,” he said. “They’ve written us and asked us to take action.”

Fewer than 300,000 cellsites are in the U.S. and the nation needs many more -- 60,000 new sites every year, Carr said. Since 2015, China has deployed 350,000, compared with fewer than 30,000 here, he said. China is deploying 460 cellsites a day, 12 times the pace in the U.S., he said: “That infrastructure gap is one we need to close.”

“Letting the private sector invest” will close the gap, and the U.S. needs to fix infrastructure rules, Carr said. The FCC order would build on the 20 state small-cell laws, he said. “We start with reasonable limits on fees” since local governments “should be fully compensated for their costs,” he said. But some communities are charging “exorbitant” fees, up to $5,000 per small cell, he said. Other cities, like Phoenix, are charging $50, he said. “The $50 approach is going to lead to a lot more deployment.”

The item’s approach on shot clocks updates rules to account for the smaller size of small cells, Carr said. The order allows local governments to take “reasonable aesthetic considerations” into account, he said. Carr said the importance of aesthetics became clear as he has visited communities across the U.S.: “Unsightly small cells don’t serve anyone’s interest.”

Also at the event, Mayor Stephanie Piko said Centennial, Colorado, has a small-cell policy and a “great relationship” with industry. Piko said the city wants to maintain some control over what gets built there. 5G is key to smart cities, she said: “We know that we need sensors throughout our cities to improve traffic, in order to respond better to our constituents.”

The FCC, the Chamber of Commerce and the cities all want the same thing, said Best Best local telecom lawyer Gerard Lederer. “We want 5G,” he said. “We want it as an economic tool. We want it as an education and public safety tool.” The U.S. led the world on 4G and every deployment was done in cooperation with a local government, Lederer said: “Why now local government is going to be the enemy we certainly don’t understand.” A local government is just like any other property owner and can’t be subject to unconstitutional takings, Lederer said. “You can’t take our property or you can’t demand that we provide it at a reduced cost without providing compensation,” he said. “We will go there in the courts.”

Local Opposition

Statewide local associations from about 15 states have raised concerns about the wireless order since its release, we found in a review of docket 17-79. They represented localities from California, Colorado, Georgia, Ohio, Illinois, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Nebraska, New York, North Dakota, Pennsylvania, Washington and Wyoming. About a dozen big cities objected, including Chicago, New York, Los Angeles, Philadelphia, Seattle and San Francisco. Nearly 150 opposition letters were from small and mid-sized local governments, many similarly worded.

Carr's effort to streamline barriers to 5G got local support from relatively few county officials, from places like Butte County, South Dakota; Yellowstone and Stillwater counties in Montana; and Baker, Harney and Malheur counties in Oregon. “Lower costs and faster action on applications … will directly translate into better service for our citizens,” three Malheur County commissioners said. “High siting fees, lengthy application process and unreasonable restrictions on how and where wireless facilities can be built slow and deter investment.”

Rewrite the wireless order because it undercuts many public-private partnerships, wrote Los Angeles Mayor Eric Garcetti (D). “It will insert confusion into the market, and sow mistrust between my technology team and the carriers with whom we have already reached agreements.” Garcetti counsel met Wednesday with Carr and Rosenworcel. California cities saw creative 5G partnerships without pre-emptive state legislation, but now they are at risk, noted San Francisco in another letter posted Thursday.

The FCC should delay until it “reflects a balanced approach respectful not just of industry demands but also of cities’ obligations to fairly, safely, and efficiently manage the public way and other public assets,” Chicago officials wrote.

Philadelphia has "a fee structure and on-line application process to apply for small cell deployment that has served the needs of its citizens without prohibiting or creating barriers to entry for infrastructure investment,” the city said. “The proposed attachment fee of $270 per year for ROW access and facilities attachment suggested by the Commission would only cover a mere fraction of the City’s costs, resulting in a significant net loss to the City.”

“This large volume of local comments reflects the concern municipalities have with the scope of preemption the FCC is proposing,” emailed NATOA General Counsel Nancy Werner. “The FCC’s proposal leaves local elected officials responsible (and accountable to voters) for small cell deployments over which their authority will be significantly curbed, which is going to raise strong objections from a diverse range of municipalities.” Institute for Local Self-Reliance Director Chris Mitchell said the agency “should recognize that it has only been listening to the complaints of the big wireless companies and not listening to the legitimate grievances of local governments when it comes to these negotiations.”

“All levels of government play a vital role in wireless siting, and many localities and states have already acted to modernize outdated siting rules," said CTIA Senior Vice President-Regulatory Affairs Scott Bergmann. "Congress also charged the FCC with the important role of addressing deployment barriers and setting a reasonable national framework." The draft will help the U.S. lead on 5G, he said.

Industry Lobbying

T-Mobile in the docket supported the FCC’s approach on wireless infrastructure. “T-Mobile commends the Draft Item for removing barriers to small wireless deployments, while protecting localities’ valid interests in overseeing deployment of wireless facilities,” the filing said. “The Draft Item provides guidance and clarity that will facilitate deployment and benefit Americans, localities, and service providers alike.”

The Competitive Carriers Association also sought action. The draft “aptly highlights certain jurisdictions that have adopted reasonable legislation and support Commission action to streamline siting policies,” CCA said. “But many localities continue to advance unreasonable policies that effectively prohibit necessary deployments.” CTIA elaborated on its support in a nine-page filing: “By setting guardrails around practices that could otherwise hinder deployment, the Commission can ensure that localities’ role in the siting process is protected while also fostering the rapid deployment of services that will benefit communities across the country."

Wireless Infrastructure Association officials met with an aide to Rosenworcel, urging support for the order. WIA stressed “the importance of bipartisan support in taking these significant steps to accelerate 5G.” Verizon also met with a Rosenworcel aide. “Building on the work of many states to update processes for reviewing small cell deployments, the draft item would establish meaningful guidance for state and local governments, while preserving their role in those reviews,” the carrier said.

XG Communities said carriers are trying to establish unreasonable price limits that don’t accurately reflect the costs of local action on siting applications. “There are substantive costs that local governments incur to fund the work that is required to prepare the city to accept carriers to deploy small cells in those local governments,” XG said. “The Order should clearly provide the list of the types of work and/or services that local governments require and should be compensated for by the carriers.”