FCC General Counsel Says on Some Issues, Federal Government Must Step In
The FCC had to take on revised wireless infrastructure rules, despite opposition from local and state governments (see 1909250062), because in some areas the federal government has to step in, said General Counsel Tom Johnson in a podcast released Friday.…
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The question regulators have to ask is “what is the competent authority in a particular area?” Johnson said: “It's got to be the lowest level of government that's competently able to deal with an issue.” In wireless siting, states and localities have a role to play but “can't impose rules that would unnecessarily delay that deployment, that would make it prohibitively expensive, because ultimately these are not local networks,” he said. Telecom is an area that only the federal government can “effectively” address “because a lot of these networks, especially when you get into broadband networks, emerging 5G networks” are national or regional, he said: A state or locality imposing a particular rule on these networks “makes it either impossible or extremely costly for [providers] to comply and deploy across multiple jurisdictions.” When the FCC was preparing to defend its 2017 order (see 1712140039) overturning parts of the 2015 net neutrality rules, Johnson said it got support from small wireless carriers, “particularly in rural or less prosperous parts of the country, that said that the conduct rules that had been imposed on a nationwide level by the prior administration were preventing them from deploying, because they couldn't afford to take on the regulatory or litigation risk.” The companies found it “too costly” to “figure out how to comply,” he said. “In many parts of the country, these were the only option for wireless service for consumers.” Johnson looks to the work of the late Supreme Court Justice Antonin Scalia in understanding federalism. The general counsel’s job lies “at the intersection of law and policy,” he said: “Sometimes … the commission will want to do something and you'll find that if you do X, it's legally risky. Maybe if you do part of X, it's less risky. So you do have these tradeoffs as to what a litigation risk is and how much policy you can get without taking on unnecessary litigation risk.” Evan Swarztrauber, an aide to Chairman Ajit Pai, interviewed Johnson.