Unanimous Vote on Big Wireless Infrastructure Order Possible, But Not Certain

Rosenworcel has questions about whether the order could lead to additional litigation rather than the intended purpose of speeding siting, an aide said at the Mobile World Congress Americas last week. But she has also been a strong proponent of 5G, sometimes questioning whether the FCC is doing enough to ensure U.S. leadership. Negotiations on the item are ongoing, FCC officials said Wednesday. On Tuesday Commissioner Brendan Carr, who crafted the item, said it will provide certainty and lead to fewer legal challenges (see 1809180038). The FCC didn't comment.

Carr told us he's hopeful for a 4-0 vote but not taking anything for granted. “No one else has totally weighed in thumbs up or thumbs down,” Carr said. “It’s still early in the process and I’m hopeful we could all get onboard with some of these commonsense ideas. It’s time for a concrete infrastructure plan to get these small cells deployed and I think this is a reasonable one. I’m hopeful that we’ll get lots of support and we’ll see.”

“Historically, broadband infrastructure issues, and especially wireless related orders, have had bipartisan support at the commission and on the Hill,” said former Commissioner Robert McDowell, now at Cooley: “Any observer should expect this vote to be bipartisan and therefore unanimous. It would be a disappointing aberration if this vote were to end up divided." Under Republican Chairman Kevin Martin ”we had a bipartisan vote partially pre-empting localities when it came to video franchising,” McDowell said. Under Democratic Chairman Julius Genachowski, “we had a unanimous vote on limited pre-emption to aid wireless infrastructure build-out that directly helped speed 4G deployment,” he said.

Morgan Reed, president of ACT|The App Association, also said he's “hopeful” of a 4-0 vote yes. “5G is good for my members,” he said. “I think it’s also great for the companies that my members serve. We’re myopically focused on getting it over the finish line.”

Meanwhile, dozens of local governments weighed in with concerns about the item, many questioning whether it correctly interprets the Communications Act. Carr said Tuesday the order contains a careful legal analysis and would survive a likely court challenge.

New York City objected to the order in a call with Carr, said a filing in docket 17-79. “The City conveyed its concerns about utilities and other demands for the rights of way, such as public safety,” New York City said. “The City conveyed that the philosophical underpinnings of the order are misapplied, in the City's strong view; the City made efforts to assert that cutting fees to enrich companies will not result in a speculative build.” Arlington County, Virginia; Clark County, Nevada; Cincinnati; and Rochester, New York, were among those asking the FCC not to approve the draft as circulated by Chairman Ajit Pai (see here, here, here and here).

“Sounds like a very large city wants monopoly rents over innovation for their citizens and businesses,” American Enterprise Institute scholar Shane Tews tweeted in response to the New York City filing. “Looks like they’re just mad the excessive fees they charge for small cells will instead be used to deploy broadband in rural America,” the Heritage Foundation tweeted.

The order “imposes needless new requirements on state and local governments,” Los Angeles County said. “In reality, the Proposed Order subsidizes the lucrative wireless industry's access to County property and dictates how the County manages its own public property to the detriment of the County and its citizens.”

NARUC Concerns

NARUC raised objections about the legal underpinnings of the order and whether it offers an overbroad reading of Section 253(a) of the Communications Act. The proposed order “finds that a state or local legal requirement would violate Section 253(a) if it ‘materially limits or inhibits’ an entity’s ability to compete in a ‘balanced’ legal environment for a covered service,” NARUC said. “The FCC is effectively suggesting that reading the word ‘prohibit’ to mean ‘literally prohibit’ -- and the phrase ‘have the effect of prohibiting’ to mean an ‘effective prohibition.’” That interpretation “cannot possibly be what Congress intended,” NARUC said.

NARUC found other problems with the draft order. The group said Section 332(c)(7) “applies only to zoning decisions and does not mention cost” and “cannot be the basis for FCC preemptive regulation in the context of the City’s permission to use its property -- the rights-of- way.”

Sam Liccardo (D), mayor of San Jose, California, who resigned from the FCC’s Broadband Deployment Advisory Committee because he considered it biased toward industry (see 1801250049), also objected. “We disagree with the premise that the FCC can interpret the reservation of powers to local governments in Section 253(c) so as to expand the prohibitory effects the FCC is authorized to regulate under Section 253(a),” Liccardo wrote.

New Street Research’s Blair Levin, former FCC chief of staff, said in an analysis of the order its focus on fees and processes is “a distraction from the real obstacles to accelerated and ubiquitous deployment of next generation mobile services, which are that broadband deployment economics are very challenging and have to be addressed at all levels of government and through creative collaboration with the private sector.” Local governments also have a strong record in recent years on working with industry, Levin wrote: “Vilifying them based on fees for use of public property is not only a distraction, but also unfair.” The report was prepared at the request of NATOA and the Coalition for Local Internet Choice.

But CTIA President Meredith Baker said in a letter to commissioners changes to infrastructure rules are critical to 5G. “In order to ensure 5G leadership, it is essential that the Commission take steps to modernize siting rules to allow the accelerated deployment of new wireless networks and small cells,” Baker said. “The U.S. needs a modernized, national policy framework for small cell deployment that accommodates state and local interests while advancing our national interest in 5G leadership.”

BDAC member Brent Skorup of the Mercatus Center said he hopes the order will get a 4-0 vote. “I was pleased to see that BDAC recommendations informed the FCC’s analysis,” he said. “It would signal the importance of this item to have FCC commissioner consensus on most of it.”

"I continue to think negotiation and constructive conversation will play an important role in successful deployment of small cells," said Doug Brake, member of a BDAC working group from the Information Technology and Innovation Foundation. "Without deemed granted, local authorities continue to have a fair bit of leverage, and carriers should still prefer cooperative efforts with reasonable fees over injunctions."

“While providers continue to negotiate with states and localities to reach agreements to deploy next-generation technologies, further reforms are necessary to secure the United States’ position as a leader in 5G development,” said Steve Berry, president of the Competitive Carriers Association. “CCA members often face burdensome, unreasonable, and unpredictable siting obstacles at the state and local levels.”