Carr Says Wireless Infrastructure Order Designed to Curb Litigation by Providing Clarity
The FCC’s pending wireless infrastructure order won't face problems in court after its expected approval next week, Commissioner Brendan Carr said at an ACT/The App Association event Tuesday. Carr said the order’s focus on aesthetics and allowing mayors and other local officials to ensure small cells and other infrastructure are pleasing to the eye has gone a long way toward limiting local opposition (see 1809040056). Local groups disagree.
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Every infrastructure decision the agency has made has been challenged in court and been upheld on appeal, said Carr, former FCC general counsel. There’s a “tremendous amount of litigation” over sections 253 and 332 of the Communications Act and over local zoning decisions, he said. “A lot of that has been based on the lack of clarity from the FCC.” Confusion over rules spawned a “cottage industry of lawyers on both sides,” he said.
The draft responds to disagreements in appellate circuits, Carr said. “We are eliminating a lot of conflict that was out there” because of “the FCC’s failure to speak authoritatively on these issues for a number of years,” he said. Clarifying the legal standard will help limit litigation, he said. Carr said he and staff spent lots of time reviewing appellate decisions in the area. “We’re really confident with the cuts that we’ve come down with” in the item, he said.
Carr said the threat of court action won’t slow deployment of 5G. “We won the race to 4G” despite ongoing litigation, he said. Carr said the FCC has done significant outreach on the proposed ruling and order.
“We’ve had a really good productive discussion on the state and local government side across the spectrum,” Carr said: “I’ve heard from several dozen [officials] and I’ve spent time with probably that same number in their local communities.” Carr said “local control is local control” and local officials “are going to continue to have a big role to play here.” The FCC “attempted to strike a reasonable balance,” Carr said. Industry sought, but the FCC rejected, “deemed granted” provisions, Carr said. “There were some big asks that industry had,” he said. “We heard strong pushback from local governments.”
The feedback from local officials has been positive especially on parts of the draft order, Carr told us. Local officials “seem to appreciate where we ended up on deemed granted, they seem to appreciate where we ended up on reasonable aesthetics,” he said. The order also is limited in reach, mostly concerning small cells in rights of way, he said. “There are parts of this” that local and state officials “don’t necessarily love,” Carr said. “We get that and we’ve heard that.”
Local Concerns
The FCC continued Tuesday to post local government letters objecting to parts of the agency's proposal in docket 17-84.
Missives came from the Maryland Municipal League, the New York State Conference of Mayors and Municipal Officials, the North Dakota Association of Counties and the Ohio Municipal League. Similar local government letters are coming in at a steady pace (see 1809170033">1809170033).
A New Jersey lawmaker floated a small-cells bill aimed at streamlining 5G infrastructure deployment by pre-empting local governments in the right of way, but the measure would allow application fees higher than what's in the FCC draft plan. Assemblywoman Carol Murphy (D) introduced AB-4422 Monday; it was referred to the Telecommunications and Utilities Committee. The FCC draft says it’s fine to charge up to $500 for a batch application with up to five small cells, plus $100 for each additional facility on the application. But the New Jersey bill would cap application fees at $650 for an application to collocate a single small-cell facility on an existing pole and up to $350 for each additional facility on the application. Local governments could charge $200 per year or “actual, direct and reasonable costs” for collocation in the ROW, less than the $270 in recurring fees allowed by the FCC draft.
The “ridiculous” FCC action would undo cooperation among state legislators, carriers and municipalities that produced Colorado’s small-cells law, Colorado Municipal League Deputy Director Kevin Bommer said in a Tuesday interview. “I’m not sure what problem they think they’re trying to solve.”
5G Backers
Fifth-generation backers focused on the standard's upsides.
5G is “on the forefront” of creating more jobs than any development since the launch of the smartphone, said Morgan Reed, president of ACT, who also spoke at the event. The generation of wireless will make a “huge difference” for urban and rural areas, he said.
The IoT enables “micro, micro, micro connectivity” that allows manufacturers or farmers to deliver their products at the best possible time, Reed said. “It’s not just your refrigerator, it’s the products that are going to get into your refrigerator that depend on the IoT,” he said. “Some of the most connected people out there are farmers,” he said. “Don’t underestimate … the desire for connectivity from the farm perspective.”
Reed told us people understand they might have to have a small cell attached to a building. “They want to know what they’re getting in return,” he said. “I think too often, we’ve uncoupled the benefits of 5G from the pragmatic expectations around local control.” The level of opposition was probably lower than expected because people are realizing the potential benefits of 5G, Reed said. When you consider there were more connected devices than people in the U.S. as of last year, “it tells you just exactly how much we’ve inculcated these devices into the way that we live our lives,” he said.