TR Daily FCC Order Would Impose Small Cell Fee Cap, Shot Clocks
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Tuesday, September 4, 2018

FCC Order Would Impose Small Cell Fee Cap, Shot Clocks

The FCC plans to consider at its Sept. 26 an order that would bar localities from adopting rules that prohibit the deployment of wireless infrastructure, impose a cap on the fees that municipalities can charge for reviewing small cell deployments, and set shot clocks for acting on small cell applications. However, the order would not adopt a “deemed granted” remedy sought by the wireless industry but opposed by localities.

FCC Commissioner Brendan Carr, who is the point person for wireless infrastructure issues at the agency, announced the details of the draft item during a news conference this morning on the Senate floor of the Indiana Statehouse in Indianapolis. The order would be the latest adopted by the Commission to make it easier for the wireless industry to deploy the small cells it says it needs to deliver 5G services.

The draft item, which was circulated to Commissioners today, will be released publicly tomorrow, when the tentative agenda for the Sept. 26 meeting is also released.

“First, it reaffirms local control over wireless infrastructure decisions where it is most appropriate, while ensuring that commonsense guardrails apply to outlier conduct. We do so by providing updated guidance on the types of local reviews that, in regulatory parlance, can materially inhibit or effectively prohibit small cell deployment. But by taking a balanced approach, we show respect for the work of state legislatures, including Indiana’s. We do not disturb nearly any of the provisions in the 20 state small cell bills that have been enacted,” Mr. Carr said in the text of his remarks.

“Second, the proposal affirms that local governments may charge wireless providers for the costs associated with reviewing small cell deployment. Providers should bear the costs of building 5G; local governments should not be required to subsidize that infrastructure. At the same time, we know that excessive fees slow down next-gen deployments and consume the scarce capital needed to bring broadband to rural and less-affluent communities,” Mr. Carr added. “So we propose that fees must amount to a reasonable approximation of local governments’ costs. To encourage cooperation between local governments and wireless providers, the FCC in the order provides specific fee amounts, below which we presume the local governments’ fees are lawful.

“Third, we tailor the ‘shot clocks’ that have long governed local review of infrastructure deployments to account for the size and scale of small cells,” Mr. Carr said. “Consistent with many state laws, we determine that local governments should conclude their approval processes within 60 days for small cells being added to existing structures and 90 days when a provider wants to put up a new small cell pole. At the same time, we recognize corner cases where a flood of new applications could legitimately overload the local process. So we put procedures in place to address this. In adopting these reforms, we do not propose a ‘deemed granted’ remedy, which many local governments opposed on the grounds that it would allow deployments without their authorization.

“Fourth, we preserve local governments’ reasonable aesthetic reviews,” Mr. Carr continued. “This is an issue I have heard a lot about in my many meetings with local officials. Communities have a particular look and feel to them. Significant effort is put into maintaining a community’s aesthetics, particularly in special zones such as historic districts. We affirm that federal law does not prevent local governments from continuing to apply aesthetic standards so long as they are reasonable, non-discriminatory, and made public in advance.”

The Commissioner added that “[t]hese are commonsense ideas drawn from the hard work of leaders right here in Indiana’s General Assembly and in 19 other state legislatures. By taking your ideas nationwide, we help ensure that every community in our country is 5G Ready. And that will make a difference to American jobs and families.”

Mr. Carr said that small cell legislation that Indiana passed last year has resulted in the deployment of more than 1,000 small cells in more than 30 Indiana communities and announcements by Verizon Communications, Inc., and AT&T, Inc., that they plan to deploy 5G services in Indianapolis this year.

In response to a question after his remarks, Mr. Carr cited “a handful of … outlier cities that are driving up the cost of deployment” and called the draft item “an approach that maintains local control, ultimately, over the decision about whether that antenna goes up or it doesn’t go up.”

In a blog posting today on the agenda for the Sept. 26 meeting (see separate story), FCC Chairman Ajit Pai said, “By updating our rules to make it easier to install wireless infrastructure, the Commission is taking another critical step to promote U.S. leadership in 5G wireless services.”

The item the FCC plans to consider later this month is the latest action or proposal designed to make it easier for industry to deploy small cells.

Since last year, the FCC has exempted small cells from historic preservation and environmental reviews (TR Daily, March 22), proposed a Program Comment to the Advisory Council on Historic Preservation to address “twilight” towers (TR Daily, Dec. 14, 2017), and made it easier to install replacement utility poles by exempting such deployments from historic preservation review when they replace substantially identical poles (TR Daily, Nov. 16, 2017).

At today’s new conference, Mr. Carr’s announcement drew praise from members of Congress, a state legislative leader, and business representatives who cited the importance that 5G deployment can have on the economy and sectors such as health care and education.

“We are a model, thanks to our state legislature,” said Rep. Susan Brooks (R., Ind.), co-chair of the Congressional 5G Caucus whose district includes part of Indianapolis.

Wireless industry entities also praised the draft item, while municipal representatives were not as pleased.

“We applaud Commissioner Carr for recognizing the importance of 5G leadership to our national economy and communities. We urge the FCC to support these proposals for modernizing outdated infrastructure rules which will spur billions in investment, millions of jobs and the innovations of tomorrow,” said CTIA President and Chief Executive Officer Meredith Attwell Baker.

“Today’s announcement by Commissioner Carr is more welcomed news for competitive carriers,” said CCA President and CEO Steve Berry. “Too often, state and localities take too long and charge too much for next-generation broadband deployments. We are living in a 5G world, as evidenced today in Indianapolis, where Commissioner Carr noted that building on smart policies is critical to expanding next-generation and 5G services for every community. What’s more important, 5G expansion isn’t just about America winning the race on a global-scale – it’s about making sure all Americans, regardless of their zip code, have access to lightning-fast Internet service. … Today’s announcement makes clear that

Commissioner Carr’s proposal will respect states’ and localities’ ability to determine what’s best for their residents while promoting 5G technology, bringing advanced services and an economic boon to Americans living in urban and rural areas alike.”

Wireless Infrastructure Association President and CEO Jonathan Adelstein said, “The steps the FCC is taking recognize the important role wireless infrastructure will play in enabling next generation wireless broadband. Wireless infrastructure will help the United States continue to be the global leader in wireless innovation, and I commend the entire FCC for its work. In his announcement, Commissioner Carr rightly reaffirmed a balanced framework with localities over wireless infrastructure decisions where appropriate, while ensuring that commonsense guardrails apply to actions that inhibit broadband deployment. The partnerships between the wireless industry and local communities remains crucial to 5G deployment and Commissioner Carr’s announcement strikes a positive tone to build upon them.”

Kathy Grillo, Verizon Communications, Inc.’s deputy general counsel and senior vice president-public policy and government affairs, said, “Commissioner Carr’s announcement makes clear that the FCC is seriously committed to the U.S. winning the global race to 5G. In some areas, providers face daunting challenges as they seek to deploy the small cells that will be the backbone of our nation's 5G future. Many policymakers at the state and local level have responded to these challenges with helpful reforms, and local officials will continue to play a pivotal role in managing public rights-of-way and protecting legitimate local interests. In order to be competitive on a global scale, the US must adopt national policies that promote the deployment of next-generation networks and services that offer huge promise to consumers, our economy, and our society. Commissioner Carr’s speech balances both of these important interests. It's a bright day for our nation's 5G future.”

“TIA applauds Commissioner Carr’s announcement of the important steps the FCC plans to take to promote wireless infrastructure deployment. Americans are placing ever-increasing demands for bandwidth on the nation’s wireless networks, and enabling rapid deployment of infrastructure is critical to keep pace with that demand. Many new networks rely on small-cell technologies, including today’s 4G networks and the next-generation 5G networks that are about to launch,” said Cinnamon Rogers, SVP-government affairs for the Telecommunications Industry Association. “The proposal announced by Commissioner Carr would implement already-existing federal law to clarify that localities cannot impose moratoria on small cell deployments, ensure that cost recovery by local governments is based on reasonable costs actually incurred, provide ‘shot clocks’ to promote more rapid approvals of small cell siting applications at the local level, and require that any aesthetic requirements be reasonable. In proposing these common-sense guidelines, the FCC has recognized that small cells are different, and that outdated permitting requirements designed for an earlier era could threaten U.S. leadership in the global race to 5G.”

Angelina Panettieri, principal associate-technology and communications for the National League of Cities, said, “We look forward to reviewing the draft order in full tomorrow when it is released by the Federal Communications Commission (FCC). However, we disagree with the suggestion that local governments, rather than market forces, are the primary reason that cutting-edge mobile broadband has not reached all Americans. We hope that the FCC will preserve local authority in its order, and appreciate that Commissioner Carr has spoken with local officials about the importance of local decision making and avoiding new unfunded mandates for local governments. We do not believe that the FCC should impose the proposed new shot clock category on local governments, even without a deemed granted provision, nor should it be in the business of offering local property to the private sector for below-market rates.”

Gerry Lederer, an attorney for Best, Best & Krieger LLP who represents local governments, said, “Let me state upfront, as it is often lost in these debates, that my local government clients need and desire broadband access, both wired and wireless, for all of their citizens and we look forward to constructively working with the Commission and the industry to make that a reality. We also welcome Commissioner Carr’s explanation that the September 26th action will not impose a deemed granted punishment. We attribute that decision to the Commission’s understanding that Congress established, in 47 USC 332(c)(7)(B)(v), that the judiciary and not the Commission are to determine if a state or local government acted inconsistent with that subparagraph of the Act.

“We will await release of the text of the FCC’s action before we comment further, but would note that local government property is constitutionally protected from government takings,” Mr. Lederer added. “Section 332(c)(7) contains no mandate that local government provide their property at cost and Section 253(c) makes clear that local governments are entitled to fair and reasonable compensation, which numerous courts have made clear is not the same as the recovery of costs.”- Paul Kirby, [email protected]

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