Carr Says Draft Infrastructure Rules Supported by Some Localities

A draft declaratory ruling circulated by FCC Chairman Ajit Pai Tuesday clarifies that industry can swap out antennas and other infrastructure on towers without delay under the 2012 Spectrum Act. Commissioner Brendan Carr told us Tuesday that despite the early resistance (see 2005110029) some local governments support the infrastructure clarification and the pandemic underscores the need for building infrastructure quickly.

The FCC also released a draft declaratory ruling and NPRM on broadcasters datacasting with ATSC 3.0 and a draft high-band item. A high-cost USF auction would be delayed a week.

Carr has spoken “with the diverse groups that represents cities and towns across this country,” he said in an interview. “They’re certainly not a monolithic set of entities with sort of a single view on this proceeding.” CTIA and Wireless Infrastructure Association petitions have been pending at the FCC since summer, he said. The draft “benefited” from “significant engagement and feedback from various local governments,” with more than 70 weighing in, he said. “Their engagement with the FCC, as it has in past proceedings, resulted in an outcome that includes policy cuts that they themselves have advocated for.”

The FCC focused on small cells in past orders and “those are sort of the building blocks of 5G,” Carr said. “We’ve been seeing a really big increase in small cell build … and not just in the biggest cities,” he said: “I’ve been in small towns and main streets that have small cells going up.” The spectrum act came at a key point in the 4G buildout and “put the final accelerator” on deployment, he said: “That is really what helped us secure U.S. leadership in 4G.” The FCC isn’t adopting new rules, just clarifying ones that apply to antennas being swapped out rather than new builds, Carr said. Municipalities no longer have to focus on applications that “should be treated the way Congress intended,” he said. “That’ll free up more resources for looking at the applications that do merit more review at the local level.”

A draft ruling clarified that a 60-day shot clock to review and approve a modification starts when an applicant “takes the first procedural step that the local jurisdiction requires as part of its applicable regulatory review process” and “submits documentation showing that the modification qualifies for streamlined review.” The ruling would clarify the definition of “substantial change” under Section 1.6100(b)(7) of FCC rules. An NPRM would seek comment on proposed changes to FCC rules on excavation or deployment outside the boundaries of an existing tower site, which further determines which projects qualify for streamlined review.

The FCC isn’t “adopting all of the rulings requested in WIA’s and CTIA’s petitions for declaratory ruling because we find incremental action to be an appropriate step at this juncture,” the draft said: The NPRM considers whether further changes “are needed to resolve current disputes.” The item advances “the same goals that led the Commission to adopt regulations implementing section 6409(a) in the first instance -- to avoid ambiguities leading to disputes that could undermine the goals of the Spectrum Act.”

Criticism

Not all cities are on board.

“We are disappointed that the FCC has chosen to move forward,” said Angelina Panettieri, legislative manager at the National League of Cities. “We do not think these changes are necessary, as channels already exist for providers to resolve wireless site modification disputes with localities, to the extent they arise.” The NLC urged the FCC “to pause proceedings requiring substantial local government input during the COVID-19 emergency,” she said.

The way the proposed order was handled by the FCC violates the Administrative Procedure Act, Best Best locality lawyer Gerard Lederer emailed: “We will reserve that issue for appeal, but spend the next two weeks trying to share with the commission why its new rules will cause more harm and more confusion than they help.”

Other critics were studying the draft Tuesday.

Industry Kudos

“It’s a recognition … of the importance of collocation for macro-tower sites and 5G as to small cells,” WIA Chairman David Weisman said at the ConnectX conference. “It adds on one more closure of the kinds of unnecessary delays that we’re finding in the tower business.” Weisman, also CEO of InSite Wireless Group, wants quick action on the NPRM, which he said addresses generators and “the slight expansion of sites.”

Delays cost time and money, said Crown Castle CEO Jay Brown. Savings mean carriers can deploy more infrastructure, he said. “As we move into 5G, being able to build these systems cost effectively, efficiently, and knowing the timelines … is just critically important.”

“5G will help power the future -- enabling the consumer technology industry to develop products that will improve our lives,” said CTA President Gary Shapiro: “For these innovations to reach their full potential, broadband providers must be able to readily deploy and upgrade.” The proposals “will ... help scale 5G in the country and allow more communities, enterprises and citizens to experience the benefits of next-generation wireless,” said National Association of Tower Erectors President Todd Schlekeway.

The high-band item includes an NPRM and an order denying long-standing partial waiver requests by Aviat Networks and CBF Networks of the antenna standards for the 71–76 and 81–86 GHz bands. The two never demonstrated the wavers were in the public interest, the draft said.

“We propose targeted changes to the Commission’s rules to promote additional wireless backhaul for 5G, in furtherance of the Commission’s goals of expanding access to broadband and fostering the efficient use of millimeter-wave spectrum in the public interest,” the draft said. The draft proposed changes to antenna standards for the 70 and 80 GHz bands to allow the use of smaller antennas and seeks comment on whether to make similar changes in the 90 GHz band. It proposed to allow point-to-point links to endpoints in motion in the 70 and 80 GHz bands, classifying those links as a “mobile” service. The draft seeks comment on link registration other technical rules.

RDOF

Commissioners will consider a public notice for Phase I auction procedures for the Rural Digital Opportunity Fund. The PN sets an auction start date of Oct. 29, a week later than first proposed (see 2002280002).

The FCC declined requests for longer delay. It disagreed with a California Public Utilities Commission request to postpone by 120 days due to the pandemic. "While we have extended the start of bidding by one week from the date set forth in the Auction 904 Comment Public Notice, we do not believe it is in the public interest to delay further the deployment of fixed broadband service to unserved areas," it said. "The COVID-19 pandemic demonstrates how essential it is that all Americans have access as soon as possible to high-speed broadband to telework, attend online classes, communicate with family and friends, and obtain healthcare remotely."

The procedures preclude bidding from applicants using newer technologies not yet demonstrated to meet the RDOF broadband standards on a mass market retail scale. "Auction 904 is not the appropriate venue to test unproven technologies," the PN said. "The risk of default -- and therefore leaving an area unserved longer than necessary -- is significantly greater if Commission staff, in making its determinations, cannot rely on concrete examples of the technology being used."

Applications won't be allowed to select 1 Gbps if they propose "any form of satellite technology." In "contrast, an applicant proposing to use fixed wireless or DSL will have the opportunity to demonstrate in its short-form application to Commission staff that it is reasonably capable of offering service meeting the Gigabit performance tier."

The PN would adopt census block groups as the minimum geographic area available for bidding and support. It said "any potential advantage of processing bids for a smaller number of minimum biddable areas is outweighed by the benefits of using CBGs."

Short-form applicants must show they have necessary business experience and financial means. "An applicant that has not previously offered a voice service or that will be offering voice using a new system would benefit from closer scrutiny to determine whether the applicant is expected to be reasonably capable of meeting the voice service requirements," the draft said.

The PN spells out the multi-round, descending clock auction. Participants bid on cost, performance tier and latency specifications. Minimum is 25/3 Mbps, and higher speeds will be favored. Low-latency, gigabit speed tiers will receive weights of zero in the reverse auction.

ATSC 3.0

The draft declaratory ruling on broadcaster datacasting under ATSC 3.0 clarifies that agreements to lease excess broadcast spectrum to a third party don't “result in attribution under our broadcast television station ownership rules.”

Some licensees “may find it useful to develop partnerships with other broadcasters or third parties to help make the most productive and efficient use of their spectrum, and the Commission has stated that it would ‘look with favor on such arrangements,’” the draft said. Such a lease -- by itself -- doesn’t allow the leasing party to “own, operate or control” the station, the draft said. Broadcasters told us they appreciate the clarification but noted rules prevent datacasting from falling under ownership limitations (see 2005180066).

Media ownership rules “are intended to promote viewpoint diversity, localism, and competition in broadcast services,” while the agency defines ancillary services such as the datacasting contemplated under ATSC 3.0 as specifically excluding broadcast services, the ruling says. “We thus find no basis to deem a lease pertaining to such non-broadcast services as implicating our media ownership limits.” Broadcasters leasing excess spectrum still must provide a free stream of broadcast content and retain control over their programming, facilities and personnel, the draft said.

The item also includes an NPRM seeking comment on other potential rule changes the agency could make to facilitate “broadcast Internet.” The NPRM would ask for input on how datacasting will be used, what applications might arise, and whether the FCC should make changes to broadcast licenses to permit different kinds of leasing arrangements.

The NPRM would seek comment whether the FCC should make changes to the fee it is statutorily required to collect on ancillary services, now 5%. The law requires the FCC to collect revenue on such uses that would approximate the value of the spectrum if it were sold at auction, the NPRM said. “Should we consider granting exemptions for certain classes of service from fees, such as telehealth, distance learning, public safety, or homeland security-related services, or services that promote access in rural areas?” asked the draft. “Would it be consistent with the statute to do so?”

The NPRM would ask broadcasters to weigh in on how the FCC determines whether ancillary services are being allowed to derogate stations’ terrestrial streams. It would ask how the agency can decide whether an ancillary service is similar enough to a regulated service -- such as wireless -- to fall under rules beyond those that apply to TV stations.