Tensions Over Federal Pre-emption, Siting Emerge During Senate Commerce Hearing

One new piece of legislation discussed was the Gigabit Opportunity Act, which Sen. Shelley Moore Capito, R-W.Va., introduced Wednesday. It “builds” on concepts often discussed by FCC Chairman Ajit Pai, she said, and “gives states flexibility, streamlines existing regulations and eliminates barriers to investment so we can better connect our low-income and rural communities.” The bill would provide tax deferral and immediate expensing for telecom companies putting money toward gigabit-capable broadband and compel the FCC to create a framework encouraging states, counties and cities to choose to accept streamlined laws for broadband and receive a designation as a “Gigabit Opportunity Zone.” The legislation also would defer capital gains temporarily for such broadband investment and permit states to give tax-exempt bonds without low-income geographic mandates.

The measure “is an important step toward closing the digital divide,” Pai said. “With targeted tax incentives and regulatory streamlining, the GO Act aims to remove the major barriers holding back Internet access in economically challenged areas.” Georgetown Center for Business and Public Policy Project Director Larry Downes told Capito during the hearing he found her bill “encouraging.”

Sen. Dean Heller, R-Nev., is working on legislation with Senate Commerce Committee Chairman John Thune, R-S.D., to “streamline the federal permitting process,” lauding the ensurance of shot clocks that federal agencies would “have to abide by,” said Heller. A Senate staffer told us Heller was referring to Mobile Now in in his reference to permitting but that he is working on a standalone bill. Thune has said he and staffers are working on follow-up legislation to his Mobile Now spectrum bill, which included many provisions on siting and dig once proposals. Thune mentioned the federal siting components of Mobile Now during his questioning and asked what Congress can do to deliver broadband in a reasonable time beyond such a federal component.

Challenges that Nokia sees, said Brian Hendricks, head-technology policy and public affairs for the Americas, in his testimony: “1) total moratoria on deployments in some jurisdictions, 2) severe restrictions on the size of new equipment or the imposition of restrictions or new fees on modifications to existing deployments, and 3) utterly uneconomic per site access fees (initial and recurring charges).” The problems demand “major federal action,” he said, pressing for uniformity at the federal level. Congress should “consider changes to the Communications Act, particularly in sections 253 and 332 that further clarify and strengthen the FCC’s authority to provide a backstop to unreasonable local rules,” he said.

Preemption Concerns

“A one-size-fits-all federal pre-emption scheme, either as a result of FCC regulations or new federal legislation, cannot adequately take into account the diverse and particular needs of communities from state to state,” said Gary Resnick, mayor of Wilton Manors, Florida, who cited affiliations with NATOA and the National League of Cities. “Pre-emption of local fees or rent for use of government-owned light and traffic poles, or fees for use of the rights-of-way amounts to a taxpayer subsidy of wireless providers and wireless infrastructure companies. There is no corresponding benefit for such taxpayers.” He wants local governments to be part of the process.

Ranking member Bill Nelson, D-Fla., probed Resnick about an FCC rulemaking on wireless siting. Resnick referred to an FCC NPRM that would “potentially pre-empt local authority” in problematic ways, picking winners and losers. Small cells are “not small,” Resnick added. “That term refers to the size of the coverage, it doesn’t refer to the size of the facilities.” Lawmakers “don’t want to step on local interests,” Thune told Resnick. The interest also is to prevent logjams, he said.

“There’s a lot of work to be done to streamline and make it easier to get those sited,” Thune told reporters. “The one thing about 5G technology is they’re not going to be as big; there are going to be more of them. We think there should be a more streamlined, easier way, more functional way for getting that technology out.”

“There is a lot that’s wasteful,” Downes told Thune, citing local officials who hear of an antenna coming and the onset of “ad hoc local authorities and people who get involved in the process” and create “very expensive” delays “for no good reason.” He thinks that type of waste is what the FCC is getting at with its latest NPRM.

Thune cited the 5G-focused legislation from Arizona state Rep. Jeff Weninger (R) (see 1704270043), who told Thune there were about 20 stakeholder meetings to craft the bill. “It got easier,” Weninger said of the recent law, advanced this year. Sen. Deb Fischer, R-Neb., noted efforts underway in the Nebraska legislature, too, and asked about the role of states. He said there's a way to work with cities to “get this done.”

Sen. Ted Cruz, R-Texas, questioned witnesses about a possible serious problem at the permitting level. “I don’t think permitting is broken,” Resnick told him. “We are updating our local codes to address the new technology.” More education and time is needed, he said. The Arizona bill would help but there’s concern about pre-emption generally, Resnick said. Weninger defended his bill as targeting “really crazy yearlong processes” and cited how critical the infrastructure is: “We still protect those local rights.”

Mobile Now

Thune hopes “in the coming weeks we will finally see Senate passage” of Mobile Now, he said, calling the legislation “a good starting point” for addressing some of these broadband issues. Witnesses also lauded the bill. Thune told reporters Senate Minority Leader Chuck Schumer, D-N.Y., is blocking passage of Mobile Now on the floor over his desire to see Jessica Rosenworcel renominated and confirmed as FCC commissioner (see 1705020061). Schumer “said he wanted to be constructive and helpful because they support the legislation,” Thune said.

Include next-generation satellite systems among any broadband infrastructure provisions of a bigger infrastructure package, recommended SpaceX Vice President-Satellite Government Affairs Patricia Cooper. Senate Commerce “should ensure that the FCC takes steps to incentivize and reward efficient spectrum sharing” and “should encourage regulatory authorities to adopt rules that create incentives that encourage the use of spectrally-efficient technologies,” she testified. She advised streamlining the FCC commercial launch spectrum licensing process, revising the spectrum use in the Ka- and V-bands and overhauling the rules for non-geostationary satellite orbit systems. Federal Aviation Administration commercial launch license rules require upgrade, she said. Satellite received less than 2 percent of stimulus money last time around, noted Sen. Brian Schatz, D-Hawaii.

Thune slammed red tape and delays while lauding private investment, such as carriers “deploying next-generation small cells that are the size of a pizza box, thus reducing the need for larger towers and minimizing environmental impact.” In many states, “you are lucky if you have a six-month window to undertake the hard work of deploying broadband infrastructure,” he said. “In South Dakota, for instance, Golden West Telecommunications has to start the permitting process one to two years before it can begin putting fiber in the ground, and sometimes even that is not enough.”

“In looking at an infrastructure package, this committee has already talked about the necessity of direct spending for broadband expansion,” Nelson said, describing the hearing’s purpose as assessing “whether there are other, nonmonetary measures Congress could -- or should -- take to improve our nation’s digital infrastructure.”