Industry and Local Government Commenters Clash on Wireless Infrastructure
The wireless industry and local and state government groups filed comments last week in docket 25-276, disagreeing sharply on the FCC’s wireless infrastructure NPRM, which commissioners approved in September (see 2511250075). The agency has received hundreds of mostly short filings opposing the changes proposed in the notice (see 2512240027).
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CTIA said the FCC should “remove the barriers that high fees impose on deployments of macro wireless facilities” and amend agency rules implementing Section 6409 of the 2012 Spectrum Act “to remove uncertainty as to their application.” The commission should also outline “what types of aesthetics and setback requirements unreasonably discriminate against wireless facilities,” clarify that express and de facto moratoriums are “unlawful,” adopt a “deemed granted” remedy when local governments fail to act on siting applications within reasonable time periods, and “expedite dispute resolution.” In addition, the group called on the FCC to ensure that state AI laws don’t inhibit wireless deployment and that state and local regulations don’t impede AI growth.
The NPRM rightly highlights that “high costs, long delays, and other obstacles deter investment in the larger wireless facilities, wireless collocations, and small cells that are necessary to densify networks and extend wireless coverage,” CTIA said. Acting quickly to streamline wireless siting rules is necessary “to ensure that the spectrum to be auctioned as part of the [reconciliation act] pipeline can be put to use as quickly and cost-effectively as possible.”
There's little credible evidence that deployments have increased or improved under the rules approved to streamline siting in 2018, said a filing from the U.S. Conference of Mayors, National League of Cities and other local government groups. “In particular, many localities have stringent aesthetic requirements for small-cell wireless installations,” they said. “We implore the FCC to respect the will of voters and taxpayers.”
The groups argued that Congress made clear in Section 253 of the Telecom Act that “it intended to preserve the authority of local governments to ‘manage the public rights-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way.’” The filing was also signed by the National Association of Counties and the National Association of Telecommunications Officers and Advisors.
Some 20 municipalities and various associations also raised concerns. A coalition of local governments argued that the law underlying the FCC’s wireless siting rulings is “now in question given the recent Supreme Court decisions such as Loper and McLaughlin,” which limit judicial deference to agency actions. “Instead of expanding existing rules or codifying old guidance, the Commission should be re-thinking its whole approach to align with current law and the limits of its own jurisdiction.”
The municipalities' filing said a “local, democratically accountable, zoning framework ensures that wireless infrastructure is deployed efficiently while maintaining public safety and the unique aesthetic character cherished by each community.” The commission’s proposals to preempt utilization of conditional use permits “reveals its lack of expertise and knowledge of land use law and policy, an area of local control it has no authority to regulate.” In addition to individual local governments, the filing was signed by groups including the Texas Coalition of Cities for Utility Issues, the Michigan Coalition to Protect Public Rights-of-Way, the Michigan Municipal League and the Michigan Townships Association.