Local governments balk at what they bill overreach

Over the objections of local government officials and the reservations of Democratic commissioner Jessica Rosenworcel, the FCC has voted to streamline the path to small cell deployment, billing it as crucial to the rollout of 5G wireless service, an FCC and Trump Administration priority.

Actually, the vote was at least partly unanimous, with the Republican commissioners approving and Democrat Jessica Rosenworcel approving in part and dissenting in part. She was all for speeding deployment, but saw the item as primarily a federal overreach that could slow, not speed, 5G.

The item comprised a declaratory ruling combined with a Third Report and Order on wireless infrastructure.

The declaratory ruling limits state and local government fees for wireless infrastructure deployment to reasonable costs for processing applications and managing rights-of-way, including specific fee levels for small deployments. It also provides guidance on when an aesthetic or underground requirement, or other state or local regulation on deployment, is an effective prohibition on the service.

The Report and Order 1) establishes a shot clock for decisions on small wireless facilities (60 days for collocation on preexisting structures and 90 days for new builds), 2) codifies other existing shot clocks; 3) makes all state and local authorizations for deployment of personal wireless service subject to those clocks, and 4) concludes that a failure to make those shot-clock deadlines is a "presumptive prohibition on the provision of services."

FCC chair Ajit Pai called it removing "layers of (sometimes unnecessary and unreasonable) rules that prevent widespread deployment." He said many states have taken positive steps toward deployment, but signaled the rules were aimed at "outliers unreasonably standing in the way of wireless infrastructure deployment." So, he said, "today, we address regulatory barriers at the local level that are inconsistent with federal law."

Pai also said concluding that fees must be nondiscriminatory and cost-based was hardly a radical move.

Commissioner Brendan Carr, who championed the item, said the item would cut $2 billion in red tape, "which changes the prospects for communities that might otherwise be left behind" in the effort to close the digital divide. He called the item a tremendous step in the right direction.

Rosenworcel said she was all for speeding 5G deployments, but with cities and states as partners. To the degree that the item shortened the time frames for state and local reviews of small cells, she agreed with the FCC approach given that the longer time frames were designed for larger buildouts, rather than the small cells that are key to 5G.

Related: FCC's Rosenworcel Talks Up 6G

But she said the rest of the item cuts states and localities out of the process. She said it was a case of the commission telling them which fees are permissible and which are not, what aesthetic choices they get to make, without regard for the fact that a one-size-fits-all approach doesn't work.

She called it extraordinary federal overreach, and likely illegal. "I don't believe the law permits Washington to run roughshod over state and local authority," she said. She said she worried the inevitable lawsuits would slow deployment.

She pointed out that the National Governors Association, the U.S. Conference of Mayors, the National League of Cities, the National Conference of State Legislatures, and others had all opposed the item. Industry stakeholder reviews were laudatory, while cities echoed their ongoing concerns.

"Today’s action by the Federal Communications Commission to accelerate small cell deployment is another critical step toward making our nation’s 5G future a reality, sooner than later," said Verizon chief network engineering officer, Nicola Palmer. "Today’s FCC order will significantly boost 5G deployment by adopting common-sense guidelines, modeled on state legislation, that reduce the time and cost of small cell deployments while accounting for legitimate local interests."

“5G is both the present and the future, and we must win the global race to next generation networks," said Chip Pickering, CEO of INCOMPAS, whose members include competitive carriers and tech companies. "This order is a big step forward for our national deployment agenda. We thank the Commission for its actions today towards achieving this goal."

Developers of the apps that will be relying on those network buildouts, were equally pleased.

“Today’s FCC approval to streamline rapid deployment of 5G is a huge step forward for American innovation and continued growth of the networked economy," said ACT-The App Association. "Just 10 years ago, wireless networks enabled app developers to completely reshape the way we live and work, growing an app economy that is currently valued at $950.6 billion and employs 4.7 million Americans."

“The FCC’s plan to cut red tape is a step in the right direction for ushering in our next era of innovation," said the Competitive Enterprise Institute. "Putting states and localities on a shot clock for approving 5G installments and capping fees charged to telecom companies at rates that compensate local governments for their troubles, but don’t allow them to extract a profit, will allow companies to complete deployment of this new infrastructure quickly and efficiently.

“Today, the FCC took the next step to further strengthen the United States’ lead in the race to 5G by adopting a framework for permitting and fees that will foster more widespread and robust infrastructure investment," said Joan Marsh, AT&T executive VP of regulatory and state external affairs. "Today’s order could not have happened without Commissioner Carr, whose leadership on this critical effort aligns with the tremendous work and foresight of state and local policymakers across the country. We are excited about our continued expansion of our small cell facilities to bring advanced wireless technologies and services to communities across the
country.”

"5G networks in America are key for powering the next generation of innovation, such as artificial intelligence and sensors in smart cities," said Michael Petricone, senior VP, government and regulatory affairs, for the Consumer Technology Association. "Today's vote to streamline small cell deployment helps keep America in the lead in the global race for 5G."

Others were seeing red and seeing it more along the lines of Rosenworcel's concerns.

"The Order limits the ability of local governments to negotiate small cell deployments that are in the public interest and diminishes local decision making," said Next Century Cities. "The Order uses a false claim -- that big cities’ application and attachment fees burden wireless companies to the point that they cannot afford to build out in smaller communities -- to recommend annual fees far below the market rates. These low fees would create a de facto public subsidization of industry investment. Despite this, the Order neglects to include any actual obligation for wireless companies to use the savings in big cities to invest in rollouts in underserved low-income urban neighborhoods or smaller and rural communities. The FCC is just giving private wireless companies all of the benefits of a utility without any traditional public interest obligations."

“Today’s vote will likely chill and undermine the good faith work that states and wireless carriers are doing across the country to ensure the public has access to next-generation wireless and fixed wireless networks," said Phillip Berenbroick, senior policy counsel at Public Knowledge. "Instead, today’s action will assuredly lead to years of litigation between the Commission, local governments, and carriers, and ultimately delay, rather than speed, 5G deployment."

"With today’s vote, the FCC continues its race to the bottom on 5G," said Michael Copps, Common Cause special advisor and former FCC chairman. "By capping the fees state and local governments can charge, the FCC has decided to put the interests of a handful of telecom companies over local communities. State and local governments play a critical role in overseeing 5G deployment and that includes the ability to assess appropriate fees to attach infrastructure on public property."

“Cities and counties are strongly committed to the timely and successful deployment of 5G facilities and services throughout the nation, just as we led and supported public and private partnerships that resulted in the successful introduction and expansion of 4G infrastructure and services," said the National Association of Counties and the National League of Cities in a joint statement. “Today’s vote, however, overlooks significant concerns from the nation’s cities and counties. Over 100 local governments from 22 states filed comments in opposition to the proposed ruling during the FCC’s comment period.

“The FCC’s impractical actions will significantly impede local governments’ ability to serve as trustees of public property, safety and well-being. The decision will transfer significant local public resources to private companies, without securing any guarantee of public benefit in return."

“The U.S. Conference of Mayors conveys its strongest opposition to today’s final Order issued by the Federal Communications Commission," said conference executive director Tom Cochran. "While The U.S. Conference of Mayors supports the nation’s efforts to win the race to 5G, today’s FCC action misapplies federal law to federalize local public property as part of its efforts to bestow upon a class of private companies special rights to access local rights-of-ways and public property.“Despite efforts by local and state governments, including scores of commenters in the agency’s docket, the Commission has embarked on an unprecedented federal intrusion into local (and state) government property rights that will have substantial and continuing adverse impacts on cities and their taxpayers, including reduced funding for essential local government services, and needlessly introduce increased risk of right-of-way and other public safety hazards. 

Related