FCC's Small-Cell Siting Order Largely a Failure, Some Experts Say
Four years after the FCC approved a declaratory ruling and order designed to speed the deployment of small cells and 5G across the U.S. (see 1809260029), and two years after the order was largely upheld in federal court, lawyers at a Monday FCBA event questioned how helpful the order really was. The FCC created two new shot clocks for small wireless facilities, 60 days for collocation on preexisting structures and 90 days for new builds, and limited fees. Now-Chairwoman Jessica Rosenworcel partially dissented.
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“I don’t really think it has been a success,” Bradley’s Nancy Werner said of the small-cell order. One of the stated objectives was to accelerate the deployment of 5G, she said. “That was on the path it was going to be on in terms of timing kind of no matter what,” she said. The order “I’m sure helped a little bit here and there, but I don’t think it had some massive impacts on the deployment plans,” she said.
The order “just created a whole new nest of problems for local governments and industry to squabble over,” said Tripp May, managing partner at Telecom Law Firm. Issues on the appearance of wireless facilities often take longer than 60-90 days to work through, he said: “There’s also gaps in the fees issues. It’s not a cap, but there are presumptively reasonable levels and there are safe harbors and there’s not a really good way” to calculate what the costs are. “Industry can’t say you must follow this rule in this manner, or else you’re going to be in trouble,” he said.
“It’s just creating new types of friction,” May said. On a real-world level “we’re not seeing the cycle of deployment levels that were talked about pre-small-cell order,” he said. Lots of small cells are being deployed, “but nowhere near the levels” promised, he said.
Tim Halinski, T-Mobile corporate counsel, agreed the success has been mixed. “It certainly has created some opportunities for industry and city officials to come together to sort of find solutions,” he said. “I certainly acknowledge … there are gaps,” he said. “We’re still debating over what’s reasonable, and we’re still debating over volume limitations and spacing requirements and undergrounding,” he said. The order “provided a great baseline” for moving forward, he said. The aesthetic part “certainly is an ongoing discussion and ongoing challenge,” he said.
The FCC’s order required local governments to establish aesthetic guidelines in 2019, and there was a rush in many areas to get them done, said Werner, a former NATOA official. “There really wasn’t a lot of time … to sit down with providers and decide what to do,” she said. “What do you do about the providers who did deploy under the published-in-advanced aesthetic criteria, but now another company comes in and says that’s not workable for us?” she asked.
Speakers disagreed whether the 9th U.S. Circuit Court of Appeals 2020 decision in the Portland case (see 2008120048), upholding the small-cell rules, has broader implications. In a recent decision (case 1:17cv355), a U.S. District Court in Albuquerque granted summary judgment to the city of Santa Fe, after local internet provider CNSP challenged the city’s laws regulating broadband infrastructure in the right of way (ROW). CNSP said the law requiring a revenue-based fee of 2% of all gross charges requires too much compensation, violating Section 253 of the Telecom Act (see 2210120030).
The FCC’s order was “very clear” it addressed only small cells, Werner said. The 9th Circuit said the agency had identified “a nationwide material inhibition” on deployment for small cells “because of the unique nature of small cells,” she said: “The FCC did not make that finding for wireline.”
In the small-cell order the FCC cited the test set up in the agency’s 1997 California payphone decision and “extrapolated that finding and applied it to small cell,” said Ted Gilliam, Zayo Group general counsel-strategic and regional network sales: “You look at California payphone, and you say [small cell] is a telecommunications service under [Section] 253. Well, so is wireline, so is wireless. There’s no distinction. … My take is California payphone applies to all telecommunications, including wireline.”
The material inhibition test in the payphone order provides a baseline, May said. “It’s just a question of what does the material inhibition look like,” he said. “Right now, we have factual findings that in the small wireless context anything beyond the reasonable approximation of costs, or that’s discriminatory in terms of which costs you’re putting on … is out of bounds,” he said: “We don’t have that same kind of factual finding in the wireline context or even in the commingled [wireline and wireless] context.”
“This just makes for more litigation,” said Davis Wright’s Heather Moelter.