by Robbie McBeath Round-Up for the Week of September 17-21, 2018; Original post here.
The September 26, 2018 FCC vote to approve WT Dockets 17-79 and 17-84 means local governments need to start planning immediately on zoning, application processing cost recovery, antenna design, location and spacing, additional pole and equipment aesthetic requirements, and other issues.
On September 26, 2018 at the Federal Communications Commission’s open meeting, commissioners voted through an order that will limit the roles of local policymakers in the desnsified deployment of 4G and 5G wireless infrastructure. So one might ask, why doesn’t my town get a say in this?
In a fact sheet introducing the order, the FCC promises it will:
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Clarify the scope and meaning of the effective prohibition standard as they apply to state and local regulation of wireless infrastructure deployment.
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Conclude that federal law limits state and local governments to charging fees that are no greater than a reasonable approximation of their costs for processing applications and for managing deployments in the rights-of-way.
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Identify specific fee levels for small wireless facility deployments that presumably comply with the relevant standard.
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Provide guidance on certain state and local non-fee requirements, including aesthetic and undergrounding requirements.
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Establish two new shot clocks for small wireless facilities (60 days for collocation on preexisting structures and 90 days for new builds) and codify the existing 90 and 150 day shot clocks for non-small wireless facility deployments that were established in a 2009 FCC ruling.
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Make clear that all state and local government authorizations necessary for the deployment of personal wireless service infrastructure are subject to those shot clocks.
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Conclude that a failure to act within the new small wireless facility shot clock constitutes a presumptive prohibition on the provision of services. Accordingly, the FCC would expect local governments to provide all required authorizations without further delay.
Industry Applauds
The wireless industry was thrilled with the plan which is being spearheaded by FCC Commissioner Brendon Carr. For them, having the FCC limit how municipalities can manage wireless infrastructure results in big savings. According to an economic analysis funded by Corning, a company with a financial interest in small-cell deployment, Carr’s plan will save $2 billion in unnecessary fees, stimulate $2.5 billion in additional small cell deployments, and create more than 27,000 jobs.
Critics Abound
Blair Levin, the architect of the 2010 National Broadband Plan, wrote this week that the FCC is ignoring reality in its proposal. His argument has four main points:
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Focusing on state and local government fees and processes is a distraction from the real obstacles to accelerated and ubiquitous deployment of next-generation mobile services. Despite the FCC rhetoric, the item is unlikely to have any material impact on whether the United States leads the world in 5G deployment.
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Local governments have a strong recent track record of endeavoring to enable and facilitate broadband deployment. The FCC’s draft order infantilizes carriers by preempting state and local government, presumably on the theory that carriers cannot protect themselves in negotiations with states and localities. Despite the FCC’s rhetoric, the proposal will likely exacerbate, rather than alleviate, the digital divide.
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The FCC’s draft order is based on a fallacy that no credible investor would adopt and no credible economist endorse: that reducing or eliminating costs for small cell mounting on public property in lucrative areas of the country (thus reducing carriers’ operating costs), will lead to increased capital expenditures in less lucrative areas– thus supposedly making investment more attractive in rural areas.
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The draft order presents a framework in which industry gets all the benefits (reduced fees to access state and local property) with no obligations to reinvest the resulting profits in rural broadband—even though the purported rationale for the reduced fees is that they will lead to new investment.
Support from Local Officials?
Commissioner Carr maintains local leaders broadly back his plan. “I’m pleased that dozens of mayors, local officials, and other state leaders all support FCC action,” Carr said. When he unveiled the plan on the September 4, Carr noted rural elected leaders had pressed for FCC action because they worry “that the billions of dollars of investment needed to deploy next-gen networks will be consumed by high fees and long delays in big, ‘must serve’ cities.”
But many municipal groups disagree, saying the plan amounts to federal overreach that could harm public safety and local governments’ ability to collect vital revenue.
- If Carr’s plan is enacted unchanged, the U.S. Conference of Mayors will sue to overturn it, CEO Tom Cochran warned.
- The National League of Cities is also opposed and “absolutely” expects litigation to follow, said Angelina Panettieri, the league’s principal associate on telecom.
The National Association of Counties is objecting too, says spokesman Brian Namey.
“By narrowing the window for evaluating 5G deployment applications, the FCC would effectively hinder local governments’ fulfillment of public health and safety responsibilities during the construction, modification or installation of broadcasting facilities.”
The U.S. Conference of Mayors complained that the FCC itself estimated its streamlining “threatens future revenues to local (and state) governments by billions of dollars over the next decade.”
Next Century Cities:
“The Order is a blatant effort by the FCC to strengthen the hand of carriers in negotiations with local governments over small cell deployment and to limit the ability of local governments to negotiate in the public interest around small cells. The order significantly diminishes local decision making.”
Debbie Goldman, the Communications Workers of America’s representative on the FCC’s Broadband Deployment Advisory Committee’s Model Code for Municipalities Working Group, filed a letter on September 18 to express concern with the FCC’s draft order.
“The draft order is inconsistent with recommendations from the Model Code for Municipalities Working Group and is an overreach of federal authority. The draft order restricts the power and authority of local governments, curbs the efforts of local governments to close the digital divide and undercuts the BDAC process by ignoring the views of critical stakeholders,”
Conclusion
Under the guise of promising shiny new technology and closing the digital divide, the FCC is proposing a change in rules that is a blatant effort to strengthen the hand of wireless carriers in negotiations with local governments over small cell deployment and to limit the ability of local governments to negotiate in the public interest. This is a huge tradeoff — and one happening without much public debate.
The small ray of light here is that the FCC is leaving local governments with some power to enact reasonable regulations governing small cell deployments. With the right approach and partner, local governments may be able to address citizens’ concerns.