TR Daily FCC Adopts Small Cell Item; Legal Challenges Expected
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Wednesday, September 26, 2018

FCC Adopts Small Cell Item; Legal Challenges Expected

The FCC today adopted a small cell declaratory ruling and third report and order over the partial dissent of Commissioner Jessica Rosenworcel, setting up expected legal challenges from localities.

The item would bar states and localities from adopting rules that prohibit the deployment of wireless infrastructure, impose limits on the fees that municipalities can charge for reviewing small cell deployments, and set shot clocks for acting on small cell applications.

The item has drawn praise from the wireless industry, which says it will help the U.S. lead the world in 5G deployment, but widespread criticism from groups representing states and localities and numerous localities themselves.

A news release on the item, which was adopted in WT docket 17-79 and WC docket 17-84, noted that the declaratory ruling (1) “[e]xplains when a state or local regulation of wireless infrastructure deployment constitutes an effective prohibition of service prohibited by Sections 253 or 332(c)(7) of the Communications Act;” (2) “[c]oncludes that Section[s] 253 and 332(c)(7) limit state and local governments to charging fees that are no greater than a reasonable approximation of objectively reasonable costs for processing applications and for managing deployments in the rights-of-way;” (3) “[r]emoves uncertainty by identifying specific fee levels for small wireless facility deployments that presumably comply with the relevant standard;” and (4) “[p]rovides guidance on when certain state and local non-fee requirements that are allowed under the Act — such as aesthetic and undergrounding requirements — may constitute an effective prohibition of service.”

The news release notes that the third report and order (1) “[e]stablishes two new shot clocks for small wireless facilities (60 days for collocation on preexisting structures and 90 days for new builds);” (2) “[c]odifies the existing 90 and 150 day shot clocks for wireless facility deployments that do not qualify as small cells that were established in 2009;” (3) “[c]oncludes that all state and local government authorizations necessary for the deployment of personal wireless service infrastructure are subject to those shot clocks;” and (4) “[a]dopts a new remedy for missed shot clocks by finding that a failure to act within the new small wireless facility shot clock constitutes a presumptive prohibition on the provision of services.”

“We shorten the time frames permitted under the law for state and local review of the deployment of small cells — an essential part of 5G networks. I think this is the right thing to do because the shot clocks we have now were designed in an earlier era for much bigger wireless facilities,” Ms. Rosenworcel said. “At the same time, we retain the right of state and local authorities to pursue court remedies under Section 332 of the Communications Act. This strikes an appropriate balance. I appreciate that my colleagues were willing to work with me to ensure that localities have time to update their processes to accommodate these new deadlines and that they are not unfairly prejudiced by incomplete applications. I support this aspect of today’s order.”

The provision concerning incomplete applications would reset the shot clock if localities tell applicants of incomplete filings within 10 days, rather than the clock only being paused, according to FCC staff.

But Ms. Rosenworcel said “in the remainder of this decision, my hopes did not pan out. Instead of working with our state and local partners to speed the way to 5G deployment, we cut them out. We tell them that going forward Washington will make choices for them — about which fees are permissible and which are not, about what aesthetic choices are viable and which are not, with complete disregard for the fact that these infrastructure decisions do not work the same in New York, New York and New York, Iowa. So it comes down to this: three unelected officials on this dais are telling state and local leaders all across the country what they can and cannot do in their own backyards. This is extraordinary federal overreach.

“I do not believe the law permits Washington to run roughshod over state and local authority like this and I worry the litigation that follows will only slow our 5G future,” she added. “For starters, the Tenth Amendment reserves powers to the states that are not expressly granted to the federal government. In other words, the constitution sets up a system of dual sovereignty that informs all of our laws. To this end, Section 253 balances the interests of state and local authorities with this agency’s responsibility to expand the reach of communications service. While Section 253(a) is concerned with state and local requirements that may prohibit or effectively prohibit service, Section 253(d) permits preemption only on a case-by-case basis after notice and comment. We do not do that here. Moreover, the assertion that fees above cost or local aesthetic requirements in a single city are tantamount to a service prohibition elsewhere stretches the statute beyond what Congress intended and legal precedent affords.”

Ms. Rosenworcel also complained that “this decision irresponsibly interferes with existing agreements and ongoing deployment across the country. There are thousands of cities and towns with agreements for infrastructure deployment — including 5G wireless facilities — that were negotiated in good faith. So many of them could be torn apart by our actions here. If we want to encourage investment, upending commitments made in binding contracts is a curious way to go.”

“This declaratory ruling has the power to undermine these agreements — and countless more just like them. In fact, too many municipalities to count — from Omaha to Overland Park, Cincinnati to Chicago and Los Angeles to Louisville — have called on the FCC to halt this federal invasion of local authority. The National Governors Association and National Conference of State Legislatures have asked us to stop before doing this damage. This sentiment is shared by the United States Conference of Mayors, National League of Cities, National Association of Counties, and Government Finance Officers Association,” Ms. Rosenworcel added. “In other words, every major state and municipal organization has expressed concern about how Washington is seeking to assert national control over local infrastructure choices and stripping local elected officials and the citizens they represent of a voice in the process.

“Yet cities and states are told to not worry because with these national policies wireless providers will save as much as $2 billion in costs which will spur deployment in rural areas. But comb through the text of this decision. You will not find a single commitment made to providing more service in remote communities,” Ms. Rosenworcel noted. “Look for any statements made to Wall Street. Not one wireless carrier has said that this action will result in a change in its capital expenditures in rural areas. … Moreover, the asserted $2 billion in cost savings represents no more than 1 percent of investment needed for next-generation networks.”

Going forward, Ms. Rosenworcel said, the FCC should develop “model codes for small cell and 5G deployment — but we need to make sure they are supported by a wide range of industry and state and local officials. Then we need to review every policy and program — from universal service to grants and low-cost loans at the Department of Commerce, Department of Agriculture, and Department of Transportation and build in incentives to use these models. In the process, we can create a more common set of practices nationwide. But to do so, we would use carrots instead of sticks.”

The Commissioner also said the FCC needs to acknowledge the negative impact that the Trump administration tariffs on China have on the deployment of 5G and said it should update its OTARD (over-the-air reception devices) rules to clarify their applicability for 5G and small cells.

But Commissioner Brendan Carr, who is the point person for wireless infrastructure issues at the Commission and shepherded the item adopted today, cited some comments from state and local officials in support of today’s action.

“So today, we build on the smart infrastructure policies championed by state and local leaders,” he said. “We ensure that no city is subsidizing 5G. We prevent excessive fees that would threaten 5G deployment. And we update our shot clocks to account for new small cell deployments. I want to thank Commissioner Rosenworcel for improving the new shot clocks with edits that protect municipalities from providers that submit incomplete applications and provide localities with more time to adjust their operations. Her ideas improved this portion of the order.

“More broadly, our decision today has benefited from the diverse views expressed by a range of stakeholders,” Mr. Carr added. “On the local government side, I met with mayors, city planners, and other officials in their home communities and learned from their perspectives. They pushed back on the proposed ‘deemed granted’ remedy, on regulating rents on their property outside of rights-of-way, and on limits to reasonable aesthetic reviews. They reminded me that they’re the ones that get pulled aside at the grocery store when an unsightly small cell goes up. Their views carried the day on all of those points. And our approach respects the compromises reached in state legislatures around the country by not preempting nearly any of the provisions in the 20 state level small cells bills.

“This is a balanced approach that will help speed the deployment of 5G,” Mr. Carr said. “Right now, there is a cottage industry of consultants spurring lawsuits and disputes in courtrooms and city halls around the country over the scope of Sections 253 and 332. With this decision, we provide clear and updated guidance, which will eliminate the uncertainty inspiring much of that litigation.”

The Commissioner added that “some have asked whether this reform will make a real difference in speeding 5G deployment and closing the digital divide. The answer is yes. It will cut $2 billion in red tape. That’s about $8,000 in savings per small cell. Cutting these costs changes the prospects for communities that might otherwise get left behind. It will stimulate $2.4 billion in new small cell deployments. That will cover 1.8 million more homes and businesses — 97% of which are in rural and suburban communities. That is more broadband for more Americans.”

FCC Chairman Ajit Pai said that “as this Order makes clear, there are outliers that are unreasonably standing in the way of wireless infrastructure deployment. So today, we address regulatory barriers at the local level that are inconsistent with federal law. For instance, big-city taxes on 5G slow down deployment there and also jeopardize the construction of 5G networks in suburbs and rural America. So today, we find that all fees must be non-discriminatory and cost-based. And when a municipality fails to act promptly on applications, it can slow down deployment in many other localities. So we mandate shot clocks for local government review of small wireless infrastructure deployments.”

“To be sure, there are some local governments that don’t like this Order. They would like to continue extracting as much money as possible in fees from the private sector and forcing companies to navigate a maze of regulatory hurdles in order to deploy wireless infrastructure,” Mr. Pai added. “But these actions are not only unlawful, they’re also short-sighted. They slow the construction of 5G networks and will delay if not prevent the benefits of 5G from reaching American consumers. And let’s also be clear about one thing: When you raise the cost of deploying wireless infrastructure, it is those who live in areas where the investment case is the most marginal — rural areas or lower-income urban areas — who are most at risk of losing out. And I don’t want 5G to widen the digital divide; I want 5G to help close that divide.”

Commissioner Mike O’Rielly called the adoption of today’s item “a tremendous step in the right direction,” but he added that “there are some things that could have been done to improve the situation further. For instance, the agreement reached by all parties in the 1996 Telecommunications Act was that states and localities would have no role over radio frequency emission issues, could not regulate based on the aesthetics of towers and antennas, and were prohibited from imposing any moratoriums on processing wireless siting applications. State and localities did not honor this agreement and the courts have sadly enabled their efforts via harmful and wrongly decided cases. Accordingly, I would have preferred that the aesthetics related provisions in the item be deleted, but I will have to swallow it recognizing that I can’t get the rest without it. At the very least, I do appreciate that, at my request, it was clarified that the aesthetic requirements, which must be published in advance, must be objective.

“I am also concerned that by setting application and recurring fees that are presumed to be reasonable, the Commission is inviting localities to adopt these rates, even if they are not cost based. Providers should be explicitly provided the right to challenge these rates if they believe they are not cost based,” Mr. O’Rielly added. “Even if not stated, I hope that providers will challenge unreasonable rates. I thank my colleagues for agreeing to my edits that the application fee presumption applies to all non-recurring costs, not just the application fee.”

The Commissioner also said that “there should be a process and standards in place if a locality decides that it needs more time to review batched applications. Objective criteria are needed regarding what are considered ‘exceptional circumstances’ or ‘exceptional cases’ warranting a longer review period for batch processing, when localities need to inform the applicant that they need more time, how this notification will occur, and how much time they will get. For instance, the item appears to excuse a locality that does not act within the shot clocks for any application if there are ‘extraordinary circumstances,’ but there are no parameters on what circumstances we are envisioning. Is a lack of adequate staff or having processing rules or policies in place a sufficient excuse? Such things should be determined upfront, as opposed to allowing courts to decide such matters. Without further clarity, I fear that we may be creating unnecessary loopholes, resulting in further delay.

“Finally, I would have liked today’s item to be broader and cover the remaining infrastructure issues in the record,” he said. “First, the Commission’s new interpretation of sections 253 and 332 applies beyond small cells. While our focus has been on these newer technologies, there needs to be a recognition that macro towers will continue to play a crucial role in wireless networks.”

“Second, the Commission needs to close loopholes in section 6409 that some localities have been exploiting. While these rules pertaining to the modification of existing structures are clear, some localities are trying to undermine Congress’s intent and our actions,” Mr. O’Rielly said. “Third, there is a need to harmonize our rules regarding compound expansion. Currently, an entity seeking to replace a structure is allowed to expand the facility’s footprint by 30 feet, but if the same entity seeks to expand the tower area to hold new equipment associated with a collocation, a new review is needed. It doesn’t make sense that these situations are treated differently. And while we are at it, the Commission should also harmonize its shot clocks and remedies. These issues should also be added to any future item.

“Lastly, the Commission also must finish its review of the comments filed in response to the twilight towers notice, make the revisions to the program comment, and submit it to Advisory Council on Historic Preservation for their review and vote,” he added. “These towers are eligible, yet not permitted, to hold an estimated 6,500 collocations that will be needed for next-generation services and FirstNet. It is time to bring this embarrassment, which started in 2001, to an end.”

Mr. O’Rielly also thanked Mr. Pai “for agreeing to additional infrastructure items, but I also thank the Chairman and Commissioner Carr for implementing several of my edits to the item today. Besides those already mentioned, they include applying the aesthetic criteria, including that any requirements must be reasonable, objective, and published in advance, to undergrounding; stating that undergrounding requirements that apply to some, but not all facilities, will be considered an effective prohibition if they materially inhibit wireless service; and adding similar language to the minimum spacing section of the item. Further, the minimum spacing requirements will not apply to replacement facilities or prevent collocations on existing structures. Additionally, localities claiming that an application is incomplete will need to specifically state what rule requires the submission of the missing information.”

At a news conference after today’s meeting, Republican Commissioners were asked if they were worried that Trump administration tariffs on Chinese products, including those used for 5G products, would slow the deployment of 5G services.

“We’re focused on what the FCC can do to promote 5G deployment,” Mr. Pai replied, adding that “the primary barrier … is federal, state, and local regulations that impede 5G deployment.”

“I defer to the trade experts when it comes to these issues of international relations and trade policy,” said Mr. Carr, but he said if the concern is about the additional costs of deploying services, the FCC’s action today will result in deployment savings of $8,000 per small cell.

The estimate that Mr. Carr often cites comes from a Corning Inc. analysis (TR Daily, Sept. 5) that said “that reducing small cell and application fees could reduce deployment costs by $2.0 billion over five years, or $7,500 per small cell built. These cost savings could lead to an additional $2.4 billion in capital expenditure due to additional neighborhoods moving from being economically unviable to becoming economically viable, with 97% of this capital expenditure going towards investment in rural and suburban areas.”

Ms. Rosenworcel was asked what the FCC could do about the tariffs on Chinese goods.

“Well, I’m a minority commissioner on a team of four right now, so my primary tool is speaking up, and I hope my colleagues will decide to do so too, she said. “I don’t think their silence, if they care about this issue, is acceptable.”

Also concerning 5G deployment, Mr. Pai and Ms. Rosenworcel were asked about a White House event Friday on 5G. Mr. Pai said he would attend and discuss actions the Commission has taken on spectrum and infrastructure deployment. Ms. Rosenworcel said she was not invited to the event.

Wireless industry entities and their allies praised today’s action, while state and local interests reiterated their opposition.

“The FCC has acted decisively to secure America’s global leadership in 5G and the innovation it will unleash across the economy,” said CTIA President and Chief Executive Officer Meredith Attwell Baker. “With the first commercial launch of 5G in the U.S. just days away, this decision will promote billions in investment and significant job creation. It creates a common sense national framework that will also enable the wireless industry to accelerate the deployment of 5G for millions of Americans.”

“I am delighted that the FCC is taking the necessary steps to advance America’s position in the global race to 5G,” said Competitive Carriers Association President and CEO Steve Berry. “As FCC Commissioner Brendan Carr noted at today’s Open Meeting, ‘Winning the race to 5G… is about economic leadership for the next decade. Those are the stakes.’ And this is just as important in rural areas as it is for urban neighborhoods. Because there is no one-size-fits-all strategy to address burdensome and unreasonable infrastructure siting policies, the Commission’s adoption of the tailored-recommendations suggested by CCA and others is a critical decision to deploying next-generation and 5G networks to consumers in all areas – rural and urban alike.”

“Today the FCC approved an important Order that takes a big step to accelerate 5G deployment,” Wireless Infrastructure Association President and CEO Jonathan Adelstein said. “The Order includes several necessary provisions that will help maintain U.S. leadership in wireless innovation. Specifically, the Order will clarify the role of state and local governments to make the process of siting wireless infrastructure faster and more efficient. For the U.S. to lead the world in 5G, sound policies like those adopted today will encourage wireless infrastructure investment. The FCC did so in a balanced manner that will encourage 5G deployment while preserving the vital role local communities play in siting decisions. This Order complements the good work of over 20 states that have enacted their own 5G legislation. Chairman Pai has shown dogged leadership on this issue and I thank Commissioner Carr for his diligence and commitment to 5G deployment.”

“The FCC’s action today addresses key obstacles to deploying 5G across the country by reducing unnecessary government red tape,” said Cinnamon Rogers, senior vice president-government affairs for the Telecommunications Industry Association. “By adopting this important wireless infrastructure order, the Commission is taking commonsense steps to fulfill its longstanding mission to ensure that consumers and businesses have access to high-speed broadband across America’s major cities, suburban and rural communities. Next-generation wireless will serve to expand the reach of internet services that are improving people’s lives through access to education, healthcare and more. TIA applauds the FCC’s leadership and its continued work to secure America’s leadership in the global race to 5G.”

Michael Petricone, SVP-government and regulatory affairs for the Consumer Technology Association, said that “5G networks in America are key for powering the next generation of innovation, such as artificial intelligence and sensors in smart cities. Today's vote to streamline small cell deployment helps keep America in the lead in the global race for 5G. At the same time, the White House's latest round of tariffs will disincentivize the rollout of 5G technologies. Tariff-driven cost increases are a tax on 5G that will increase costs and dramatically slow infrastructure deployment. In the global race for 5G leadership, increasing U.S. equipment costs actually helps China in an area where the U.S. should be dominating.”

Others releasing supporting statements included Mobile Future, the Computer & Communications Industry Association, Verizon Communications, Inc., AT&T, Inc., T-Mobile US, Inc., Incompas, and Tech Knowledge.

But representatives of states and localities blasted the FCC’s action.

USCM CEO and Executive Director Tom Cochran said that his group “supports the nation’s efforts to win the race to 5G, today’s FCC action misapplies federal law to federalize local public property as part of its efforts to bestow upon a class of private companies special rights to access local rights-of-ways and public property. Despite efforts by local and state governments, including scores of commenters in the agency’s docket, the Commission has embarked on an unprecedented federal intrusion into local (and state) government property rights that will have substantial and continuing adverse impacts on cities and their taxpayers, including reduced funding for essential local government services, and needlessly introduce increased risk of right-of-way and other public safety hazards.

“This wrongful intrusion threatens to slow down and undermine the FCC’s own efforts to accelerate the deployment of new wireless infrastructure. In another action, the commission even seeks to rewrite and overturn decades-old compensation agreements between local (and state) governments and cable providers,” Mr. Cochran added. “The Conference and its members now look to the federal courts to review and rectify this unlawful taking of local property, actions which we believe will compel local elected officials to subsidize, or ‘gift’, local public property to a small, favored group of private businesses.”

In a joint statement, NACo and NLC said, “Cities and counties are strongly committed to the timely and successful deployment of 5G facilities and services throughout the nation, just as we led and supported public and private partnerships that resulted in the successful introduction and expansion of 4G infrastructure and services. Today’s vote, however, overlooks significant concerns from the nation’s cities and counties. Over 100 local governments from 22 states filed comments in opposition to the proposed ruling during the FCC’s comment period.

“The FCC’s impractical actions will significantly impede local governments’ ability to serve as trustees of public property, safety and well-being. The decision will transfer significant local public resources to private companies, without securing any guarantee of public benefit in return,” the groups added. “Counties and cities are the stewards of substantial amounts of public rights-of-way, which many telecommunications providers use to construct their own communications networks. By narrowing the window and resources for evaluating small cell applications, the FCC is effectively hindering our ability to fulfill public health and safety responsibilities during the construction and modification of broadcasting facilities. Local governments share the FCC’s goal of ensuring affordable broadband access for every American, regardless of their income level or address. However, today’s vote applies a one-size-fits-all approach to broadband deployment that simply will not work in the vast majority of cities and counties across the country.

“With this ruling, the FCC is overlooking its overall goals to ‘build on the commonsense reforms adopted in state legislatures and town councils across the country.’ Local governments share the FCC’s urgency; however, this ruling promises to force local governments to rubber-stamp small cell applications or face crippling legal recourse from providers racing to corner the 5G communications market,” the groups said. “We urge the FCC to delay the rule, and we plan to support local effort to mitigate its impacts.”

Nancy Werner, general counsel of the National Association of Telecommunications Officers and Advisors, criticized the small cell item, as well as a second further notice of proposed rulemaking released yesterday concerning local franchising authorities’ regulation of incumbent cable operators and cable TV services (TR Daily, Sept. 25).

The item adopted today “effectively gives away public property to wireless providers and ties the hands of local governments without asking anything of an industry with billions of dollars of revenue each year,” she said.

“What do these two actions do for consumers? Ubiquitous access to broadband, including rural and low income areas? Affordable broadband? Assurances that the community aesthetic will be respected? Reasonable compensation to the public for for-profit use of public property? No, no, no and no,” she added. “Despite acknowledging the serious issues with the growing digital divide, the Commission relies on nothing but trust that the industry will decide to serve less profitable areas that have been left behind, despite a history indicating that trust is misplaced. If more industry profits meant more deployment in these areas, we would not have a digital divide.

“As Commissioner Rosenworcel noted, every major municipal organization opposes the Declaratory Ruling, as do dozens of municipalities that have filed comments with the Commission,” Ms. Werner continued. “This overwhelming opposition is not opposition to 5G or broadband deployment. It is opposition to the Commission making decisions on behalf of local governments that have the ultimate responsibility for safeguarding their communities.”

Gerry Lederer, an attorney for Best, Best & Krieger LLP who represents local governments and has noted that localities plan to challenge the FCC in court over the item, told TR Daily, “As the national organizations have stated, local governments, including my clients, are disappointed that their property rights are being taken. Still, we have avenues to pursue the protection of those rights. The real disappointment of today’s action is that it yet again delays the day that rural America will obtain services. Unlike the characterization that some would like to paint, urban Americans through their contributions to the Universal Service Fund have long supported bringing services to less densely populated areas of our country. The false narrative being spun by the Commission today, that the industry will take their windfall rental rebate and invest in rural America without a mandate to do so is naïve at best. As to non-property rights issues, we look forward to the changes that Commissioners Rosenworcel and Carr were able to achieve in the shot clocks and transition period that were referenced from the dais.”

In a letter to the FCC yesterday, the NCSL and the NGA criticized the item adopted today.

“While we share the Commission’s goal of ensuring the growth of cutting-edge broadband services for all Americans, we remain concerned about several provisions of this proposal. The FCC’s proposed shot clocks and the fee caps will preempt all 20 states that have passed small cell legislation in cooperation with industry and localities. Not only will these 20 states be affected, but it also ties the hands of any other state that is looking to ensure inclusive and equitable access to high speed internet services to residents,” the groups said. “State and local governments have an important responsibility to protect and respond to constituents[’] concerns regarding access, equity and safety, and we are concerned that these preemption measures compromise that traditional authority.”

Free Press Policy Manager Dana Floberg said today, “This is yet another giveaway from Chairman Pai to wireless giants like AT&T and Verizon. With no discernible benefit to deployment of 5G wireless facilities to underserved areas, this order would preempt local government authority and deprive communities of the right to determine collection of funds — all in the name of marginally lowering costs for wireless giants. The FCC majority wants to frame this decision as an effort to bridge the digital divide by, in their words, removing barriers to 5G wireless deployment. They’ve made the ludicrous suggestion that municipalities have created those barriers and hold all of the power at the bargaining table against the hundred-billion-dollar companies. But, by and large, local governments are inviting new deployment, not resisting it. Many municipalities have already made substantial efforts to clear the way for 5G deployment, while others have invested resources in developing digital-inclusion projects to close the digital divide within their communities. Placing the blame for disconnected communities primarily on municipal authorities is merely a distraction from the unfortunate reality that wireless companies and others often refuse to serve or upgrade in poor and rural areas because they don’t see the profit in it.”

“Communities across the country are working hard to encourage 5G investment,” said Deb Socia, executive director of Next Century Cities. “Local leaders want this technology that will improve quality of life for their constituents. However, this Order puts a foot on the scale for industry, and limits community capacity to serve the public interest. Mutually beneficial agreements will only happen when local governments can come to the table without their hands tied behind their backs.”

“We are still reviewing today’s action by the Federal Communications Commission. At first blush, we are troubled by the Commission’s decision to threaten to preempt local authorities who are best suited to review applications to site small-wireless facilities,” said Joy Ditto, president and CEO of the Utilities Technology Council. “The utility industry understands the need for regulatory certainty when it comes to infrastructure projects. Planning system upgrades, replacements, and new infrastructure takes time and money, so a deliberate review is essential to the process. Such review gives the public confidence that any new infrastructure is safe, sound, reliable, and state of the art.

“Unfortunately, the plan approved today by the FCC reduces many of these safeguards and overreaches in its effort to promote the deployment of 5G small cellular facilities,” Ms. Ditto added. “By imposing regulatory limits on the fees governmental entities can impose for small-cell attachments to municipal infrastructure — including utility poles — the FCC is overstepping its authorities under the Communications Act, which prohibits such action. Moreover, despite the rhetoric that regulating these fees would result in broader deployment of 5G services, the reality is that the digital divide is increasing as wireless and wireline communications providers have either discontinued or significantly reduced the quality of their services in rural America. Reports commissioned by state agencies have concluded that lower pole-attachment fees have no impact on the deployment of broadband services in rural America. Yet the FCC today approved rules that subsidize the wireless industry with no corresponding evidence that doing so will benefit anyone but the telecom industry itself. Worse, those Americans in unserved and underserved locations are unlikely to see any additional investment in improved broadband and wireless services.”

Members of Congress weighed in on both sides of the issue this week, with some supporting the item and others opposing it.- Paul Kirby, [email protected]

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