WIA Plans Push at FCC on Further Streamlining of Wireless Infrastructure Rules
The Wireless Infrastructure Association plans a push in coming months to get the FCC to move forward on an additional wireless infrastructure order, focused on rules for approving collocations, President Jonathan Adelstein said in an interview last week. Last year, the agency, where he used to be a Democratic commissioner, approved two major wireless infrastructure orders. Both are targets of court actions.
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Commissioner Brendan Carr, the lead at the agency on changes to wireless infrastructure rules, said recently more work on the issue is likely, though he has made no decisions (see 1908060065) on what comes next. “We believe we’re getting some traction from the FCC,” Adelstein said now.
In August, the U.S. Court of Appeals for the D.C. Circuit reversed a key part of a March 2018 wireless infrastructure order. The court said in United Keetoowah Band v. FCC, No. 18-1129, the FCC unlawfully excluded small cells from National Environmental Protection Act and the National Historic Preservation Act review. The court upheld other parts of the order. Industry observers said then the stakes are higher in the other case, before the 9th Circuit (see 1908090058).
“Industry is encountering some municipalities where they’re not properly applying Section 6409” of the Spectrum Act, “which is designed to promote collocation,” Adelstein said. The law requires if there’s not a “substantial change,” an application be approved “by right,” he said. Some cities “are starting to throw up roadblocks, requiring unnecessary authorizations or playing games with concealments or giving conditional approvals,” he said. The problems are coming from “a minority of municipalities, but a significant number,” he said.
Currently, providers can expand the base of a tower by 30 feet without going through federal historic and environmental review, Adelstein said. With a collocation, including a generator for public safety or a data center, “you have to go through all this red tape,” he said: “We’ve asked the FCC to basically treat collocations for public safety or 5G the same way they would treat a drop and swap,” he said.
WIA recognizes litigation over the previous orders “slowed things down,” but “as the dust is settling now, we believe that Section 6409 provides really solid legal footing to close some of these abuses down and also to make progress on federal red tape,” Adelstein said. WIA started working on the issue last year (see 1810090038). Members have a fly-in in early October, which will include visits to the commission, he said.
States and local governments are likely to oppose further revisions to the rules, industry officials said. “Given the legal challenges to the FCC’s new wireless infrastructure rules, it seems premature to issue any additional rules,” NATOA General Counsel Nancy Werner told us. “The D.C. Circuit recently found some of the commission’s small-cell rules to be arbitrary and capricious,” she said. “That ruling warrants a pause in further rulemakings so that we don’t end up with thousands of facilities deployed under rules that are later struck down by the courts, which would create a lot of uncertainty for carriers and local governments.”
“The FCC will likely pursue further action to expedite small-cell deployment this year,” said R Street Tech Policy Manager Tom Struble. “That has been a clear priority for the FCC in the last few years, and the recent setback at the D.C. Circuit gives them another opportunity to promote wireless infrastructure deployment before the administration and agency priorities potentially change.”
“The script has been repeated many times,” emailed Robert McDowell of Cooley, an ex-GOP FCC member. “Localities unnecessarily impede broadband buildout; the FCC issues a narrowly focused order -- usually on a bipartisan basis -- to surgically preempt local and state overreach while preserving sensible local authority; the municipalities appeal, then largely lose; then they drag their feet or find other ways to get in the way of broadband deployment resulting in the FCC having to issue another order.”