TR Daily Municipalities, Utilities Ask FCC to Reject WIA, CTIA Petitions
Wednesday, October 30, 2019

Municipalities, Utilities Ask FCC to Reject WIA, CTIA Petitions

Scores of municipalities and utilities have asked the FCC to reject petitions for declaratory ruling and rulemaking filed by the Wireless Infrastructure Association and CTIA seeking further FCC action to streamline the deployment of wireless infrastructure, saying the petitions seeks actions that are not necessary, would be contrary to the law and FCC precedent, and would intrude on local land use processes. But wireless industry entities asked the Commission to adopt the provisions sought by the trade groups.

Comments were filed by yesterday’s deadline In WT docket 19-250, WC docket 17-84, and Rulemaking 11849 in response to the WIA and CTIA petitions, which were filed in August and September (TR Daily, Aug. 27 and Sept. 9).

WIA filed petitions for declaratory ruling and rulemaking asking the FCC to take steps to enable the industry to get relief under section 6409 of the Middle Class Tax Relief and Job Creation Act of 2012. Section 6409(a) directs states and localities to approve “any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”

Specifically, the petition for declaratory ruling asks the FCC “to clarify that (i) Section 6409(a) and the implementing regulations apply to all state and local authorizations required to deploy new or replacement transmission equipment on existing wireless towers or base stations; (ii) the Section 6409(a) shot clock begins to run when an applicant makes a good faith attempt to request local approval; (iii) the substantial change criteria in Section 1.6100(b)(7) of the Commission’s rules should be narrowly interpreted; (iv) ‘conditional’ approvals of eligible facilities requests (‘EFRs’) violate Section 6409(a); and (v) localities may not establish processes or impose conditions that effectively defeat or reduce the protections afforded under Section 6409(a).”

The petition for rulemaking says the FCC “should update its rules to: (i) ensure that collocations requiring limited compound expansions – excavation within 30 feet of a tower site – qualify for relief under Section 6409(a) … and the FCC’s implementing regulations; and (ii) require that fees associated with Eligible Facilities Requests (‘EFRs’) for the provision of telecommunications services must be cost-based. Such carefully defined action will be consistent with the purposes of Section 6409(a) – to facilitate broadband deployment by eliminating barriers to collocating new transmission equipment on existing wireless towers, and Section 706 of the Telecommunications Act of 1996 – to ‘encourage the deployment on a reasonable and timely basis of advanced telecommunications capability to all Americans.’”

The petition for declaratory ruling notes that the FCC in 2014 adopted rules clarifying many of the terms of section 6409(a), including “substantial change.”

“Unfortunately, despite the Commission’s best intentions, certain jurisdictions continue to misapply Section 6409(a) and/or are still acting in ways that circumvent the protections afforded by Section 6409(a),” the petition adds. “For example, the 2014 Order stated that the rules implementing Section 6409(a) did not inhibit the ability of localities ‘to enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety.’ This has emboldened some localities to claim – erroneously – that Section 6409(a) and the related shot clock do not apply to all of the sometimes numerous government approvals that are necessary before infrastructure deployment can commence. Other localities are claiming that the Section 6409(a) shot clock does not commence until numerous hurdles are cleared, including pre-application hurdles.”

CTIA’s petition for declaratory ruling asked the FCC to clarify provisions of section 6409 of the Middle Class Tax Relief and Job Creation Act and section 224 of the 1934 Communications Act, as amended, saying that such actions will “unleash the continued rapid investment that will be necessary to fully realize the potential of 5G in the United States.”

The trade group asked the FCC take these actions regarding section 6409(a): (1) “clarify that the term ‘concealment element’ in its rules applies only to a stealth facility or design element, such as an artificial tree limb or screen, and that concealment requirements may not be used to disqualify an application as an eligible facilities request (‘EFR’)”; (2) “clarify that the term ‘equipment cabinet’ in its rules means cabinets that are placed on the ground or elsewhere on the premises, and does not include equipment attached to the structure itself, which is covered by other parts of the rule”; (3) “clarify that the entire structure or building is the ‘base station’ being modified, and thus that the size of the structure determines if a modification qualifies as an EFR”; and (4) “clarify that if a siting authority fails to timely act on an application for an EFR under 6409(a), and the application is thus deemed granted, applicants may lawfully construct even if the locality has not issued related permits[.]”

CTIA asked the FCC to take these steps “to remove uncertainty about access to utility poles under Section 224:” (1) “declare that the term ‘pole’ includes light poles, and that utilities thus must afford nondiscriminatory access to light poles at rates, terms, and conditions consistent with the requirements of Section 224 and the Commission’s implementing pole attachment rules”; (2) “reaffirm that utilities may not impose blanket prohibitions on access to any portions of the poles they own”; and (3) “declare that utilities cannot ask providers to accept terms and conditions that are inconsistent with the Commission’s rules.”

At the MWC19 Los Angeles show last week, Will Adams, wireless legal adviser to Commissioner Brendan Carr, who is the point person at the Commission on wireless infrastructure issues, said that officials are looking at the WIA and CTIA petitions (TR Daily, Oct. 24). “I think it’s important that we take a look at macro towers again and see if there’s some refreshing and some modernization we can do,” Mr. Adams said.

Commissioner Mike O’Rielly said at the show that he hopes the FCC takes further action before the end of the year to facilitate the construction of macro towers and provide additional relief for small cells (TR Daily, Oct. 23). Mr. O’Rielly said he has talked with FCC Chairman Ajit Pai and Commissioner Carr about the matter, and he suggested that the FCC can use the CTIA and WIA petitions as “a great starting point” to facilitate macro tower construction and notification while providing additional relief to make it easier to deploy small cells.

In joint comments, the National Association of Telecommunications Officers and Advisors, the United States Conference of Mayors and the National Association of Counties said they “dispute the need for the far-reaching changes to the Rules requested in the Petitions. Neither the text of Sections 6409 and 224 nor the vague allegations against mostly unnamed jurisdictions asserted in the Petitions support the argument that the current rules are insufficient. The suggested ‘clarifications’ are in fact significant changes that would permit deployments that are in no way insubstantial modifications …”

For example, they said, the requested modifications would (1) allow “applicants to deploy facilities in locations never reviewed or approved for wireless facilities;” (2) command “that local governments issue electrical, structural and building permits on the sixty-first day after an applicant believes they made a ‘good faith attempt’ to submit the application, regardless of whether the application raises serious public safety issues;” (3) disregard “long-standing concealment requirements imposed prior to enactment of Section 6409, when it was impossible for local governments to know that these conditions would have to be ‘specifically identified as concealment elements’ to remain enforceable;” (4) cap fees and mandate “that local governments issue permits regardless of whether the applicant has paid applicable permit fees;” and (5) mandate “that street light poles be available for attachments without regard for the public safety implications and contractual obligations that distinguish street lights from typical utility poles.”

“Because the Petitions’ proposals are contrary to the statutes, are a significant intrusion on local land use processes and would pose public safety risks, we request that the Commission not take action on these Petitions,” the groups added. “If the Commission finds that changes are needed to the rules related to either Section 6409 or Section 224, we support the suggestion of the Broadband Deployment Advisory Committee, of which NATOA is a member, that this issue be referred to a balanced working group of all stakeholders to review and recommend changes, if any, that may be needed to ensure the rules address Congress’s intent in enacting these statutes.”

In joint comments, the National League of Cities and 25 municipalities and groups representing localities complained that the petitions filed by WIA and CTIA “ask the Commission to significantly exceed the congressionally established limits of Sections 6409(a) and 224, and urge the Commission to adopt positions inconsistent with those the Commission relied upon in defending the existing Section 6409(a) framework before the Fourth Circuit.

“Petitioners fail to substantiate their allegations, and in many cases omit critical context in mischaracterizing local permitting and land use practices. No record based solely on responses to these Petitions will provide adequate support to justify Petitioners’ demands. Moreover, the agency’s views are entirely unknown and therefore cannot be commented upon, thereby failing to provide adequate notice and opportunity to comment on any ultimate rule changes,” the filing added. “Section 6409(a) was adopted to allow minor modifications and expansions to existing sites previously approved through discretionary land use and zoning processes. Section 6409(a) was not meant to allow installation of equipment in locations never previously approved for wireless use. Section 6409(a) was not meant to short-circuit the ability of localities to protect the aesthetics of their communities. Section 6409(a) was not meant to entitle applicants to evade payment of fees, to start shot clocks without actually submitting applications, or to begin construction without actually receiving permits. Section 6409(a) was intended to cover only those minor modifications that were not deemed ‘substantial.’

“Yet under the guise of requests for ‘clarification,’ Petitioners ask the Commission to grant them the right to demand approval of larger sites with less concealment, placed on portions of structures or on plots of land never subject to land use review and approval, and to deny localities the application information necessary to enforce applicable local, state, and federal law,” the municipal entities added. “These are not ‘clarifications’ – these are, in fact, substantial changes to the Section 6409(a) regime, and inconsistent with the statute and the Commission’s prior rulings. There is no need to change the rules. The fact that an application falls outside of Section 6409(a) does not mean that it will face significant delays or be denied. Rather, even an application that involves a substantial change will typically be approved in the normal course, subject to appropriate additional conditions that protect the public. The Commission has an ample record showing that most applications for wireless facilities are approved, and approved without reliance on Section 6409(a). Moreover, the sorts of modifications sought are really not needed for well-designs installations, including those designed to support 5G. Changing the rules to make it easier to modify facilities is almost certain to cause significant additional delays in deployment. That is because techniques that communities and carriers are using to minimize impacts and to obtain approvals in areas where wireless providers are installing facilities entirely inconsistent with those installed by other utilities – authorizing carefully designed and placed monopoles; installing structures that include street lighting and that if not completely ‘stealth’ are nonetheless designed to fit in with the surrounding environments, for example – may no longer be enforceable.”

In addition to the NLC, the entities filing the joint comments were Clark County, Nev.; Cobb County, Ga.; Howard County, Md.; Montgomery County, Md; Ann Arbor, Mich.; Arlington, Texas; Bellevue, Wash.; Boston; Burlingame, Calif.; Fairfax, Calif.; Gaithersburg, Md.; Greenbelt, Md.; Hillsborough, Calif.; Kirkland, Wash.; Lincoln, Neb.; Los Angeles; Monterey, Calif.; Myrtle Beach, S.C.; New York City; Omaha, Neb.; Portland, Ore.; San Bruno, Calif.; the Michigan Coalition To Protect Public Rights-Of-Way; the Texas Municipal League; and the Texas Coalition Of Cities For Utility Issues.

A group of 34 localities and municipal groups filing as the Western Communications Coalition raised a number of issues, including due process concerns, shot clock matters, substantial change issues, compliance with public health and safety requirements, and fees currently charged by municipalities.

“The numerous vague and unsubstantiated allegations against local governments upon which Petitioners rely to support their proposed changes to the rules raise significant due process concerns because they fail to provide sufficient notice and opportunity for maligned communities to Respond,” according to the coalition. “In light of the demonstrated inaccuracy of some of the allegations against named communities, the lack of an opportunity to respond to allegations against unnamed communities is an even more significant due process problem. This defect also runs counter to Commission preferred procedure for how to introduce competent evidence into the record. The Commission should not rely on these unsupported anecdotes in its pursuit of reasoned rulemaking.”

The coalition also argued that the existing “60-day shot clock and submittal rules already accomplish the goals embodied in Section 6409(a). Modifications are already being approved within the current timeframes and WIA’s and CTIA’s proposals would introduce more subjectivity and ambiguity that will confuse applicants and permit authorities alike. WIA also asks the Commission to impose a written findings requirement under Section 6409(a) that is more burdensome than that required under Section 332(c)(7)(B) and to preempt the open-meeting processes in which some local governments choose to conduct their business. Most importantly, both Petitioners advocate for a remedy so extreme that no public health and safety official would recognize as sound policy.”

The coalition also said that “WIA’s proposal to create an un-rebuttable presumption approving 30-foot compound expansions appears to be anticipating a problem for which it has no evidence exists in the context of Section 6409(a). The current rule already restricts new transmission equipment to the space ‘leased or owned’ by the site operator at the time it requests approval. WIA cites industry sources that fail to show whether any local government actually denied or delayed compound expansion, whether the compound expansions even implicated questions that Section 6409(a) was intended to resolve, or whether the 30-foot proposal is consistent with the examples of compound expansions it provides.”

The following entities signed onto the filing by the coalition: San Diego; Beaverton, Ore; Boulder, Colo.; Breckenridge, Colo.; Carlsbad, Calif.; Cerritos, Calif.; the Colorado Communications And Utility Alliance; Coronado, Calif.; Danville, Calif.; Encinitas, Calif.; Glendora, Calif.; King County, Wash.; Lacey, Wash.; La Mesa, Calif.; Lawndale, Calif.; the League Of Oregon Cities; the League Of California Cities; Napa, Calif.; Olympia, Wash.; Oxnard, Calif.; Pleasanton, Calif.; Rancho Palos Verdes, Calif.; Richmond, Calif.; San Anselmo, Calif.; San Marcos, Calif.; San Ramon, Calif.; Santa Cruz, Calif.; Santa Monica, Calif.; Solana Beach, Calif.; South Lake Tahoe, Calif.; Tacoma, Wash.; Thousand Oaks, Calif.; Thurston County, Wash.; and Tumwater, Wash.

In joint comments, the Edison Electric Institute, the National Rural Electric Cooperative Association, and the Utilities Technology Council called on the FCC to “reject all of the relief requested in CTIA’s Petition for Declaratory Ruling (‘Petition’), because such relief would unlawfully expand the Commission’s Section 224 pole attachment jurisdiction, would conflict with well-settled judicial and Commission precedent, and would interfere with the application of state and local requirements that affect pole attachments and electric utility construction. The Petition fails to demonstrate that any current practice of utility pole owners is unjust, unreasonable, or discriminatory, or results in a complete denial of access to poles, in violation of Section 224. Conversely, the Petition also offers no evidence to support that the declaratory relief requested by CTIA is necessary to ensure pole access under Section 224, or to advance the deployment of broadband or 5G services. At bottom, the Commission would have no justification whatsoever to grant the vast scope of relief that CTIA demands.”

Among other things, the groups complained that “the Petition requests that the Commission declare a seemingly broad, but undefined classification of utility-owned structures referred to as ‘light poles’ subject to all requirements of Section 224, and the Commission’s poles attachment rules. This declaration contradicts the plain language of Section 224, as well as the clearly articulated intent of Congress, at the time that the statute was first enacted, and again, in 1996, when the statute was amended to include attachments by telecommunications service providers. This declaration also is foreclosed by judicial precedent that expressly limits the scope of Section 224 to poles that comprise a utility’s electric distribution network, and are used to provide power service to the utility’s customers.

“The policy basis provided by CTIA similarly lacks merit,” according to the groups. “While the Petition claims that so-called ‘light poles’ are optimal for the placement of wireless antennas, nowhere does it demonstrate that access to light poles is necessary to provide wireless services, or that the current interpretation of Section 224 (which does not provide mandatory access to ‘light poles’) has been an impediment to the deployment of wireless services. To the contrary, utility-owned light poles comprise only a small part of the robust free market that has developed over the past two decades for wireless service providers to access towers, buildings, and other structures that are suitable for the operation of small cells. Moreover, the Petition provides no evidence that utility pole owners possess monopoly power with respect to light poles, or are positioned to assert any leverage that would result in unreasonable rates, terms, or conditions for access to light poles.”

The filing also noted that “the Petition requests that the Commission broadly prohibit all reasonable and nondiscriminatory construction standards that limit the encumbrance of the lowest portion of the pole, known as the ‘unusable space’. This relief violates Section 224(f)(2), which expressly permits any utility pole owner to deny access to its pole where insufficient capacity exists, for reasons of safety, reliability, or engineering. The statute does not prohibit system wide utility construction standards that incidentally restrict certain uses of utility poles, provided that such standards are based on the concerns identified in Section 224(f)(2) – and in fact, the Commission has endorsed such ‘ex ante’ requirements that are ‘clear, objective, and equally applied.’ The Commission also historically has not disturbed construction standards that a utility pole owner has adopted to comply with state and local requirements that affect pole attachments and pole attachment construction. The construction standards complained of by CTIA are squarely within the types of construction standards permitted by the Commission in the past, and importantly, CTIA’s Petition offers no evidence that restrictions on the use of the unusable space violate Section 224, or adversely impacts the deployment of 5G or broadband services.”

The utility groups also suggested that “the Commission lacks the authority to provide the relief that CTIA requests in the form of a declaratory ruling. Under the requirements of the Administrative Procedure Act (‘APA’), the Commission must issue a public notice, and must offer interested parties an opportunity to comment on any new substantive rule – in an APA-compliant rulemaking. The relief requested by CTIA undoubtedly would require the Commission to promulgate new substantive rules, as its Petition invites the Commission to expand its pole attachment jurisdiction over the private property rights of utility pole owners, in a way that would fundamentally alter the current, and highly successful free market for wireless infrastructure access.”

A group of utilities that submitted comments as the Coalition of Concerned Utilities said that “CTIA’s Petition should be rejected, as it contains proposals that would be prohibitively burdensome, sacrifice vital utility standards that have been developed over decades, and reject commonsense compromises necessary for pole attachment contract negotiations. The Coalition respectfully suggests that the best public policy is one that encourages all affected parties to resolve their attachment issues collaboratively based on local operating and regulatory conditions, to ensure that pole owners have incentives to continue to replace poles, and to ensure that utility operating and design standards be respected and followed.”

The coalition continued, “CTIA’s proposals are also unnecessary, untimely and counterproductive. Utilities are willing to work with wireless carriers because they recognize the necessity in the deployment of advanced communications for the benefit of their own communities; however, utilities cannot continue to assist at any cost, and cannot participate at the expense of what they consider to be the safe, reliable and efficient operation of utility distribution and streetlighting systems. CTIA’s proposal that the Commission begin regulating attachments to streetlight-only poles would violate the Pole Attachment Act, which does not require utilities to provide access to any utility property that is not part of a distribution network. Streetlight-only poles are not part of the distribution network.

“Accommodating wireless attachment installations on streetlight-only poles is expensive, complicated, and time consuming, and requires the dedication of considerable utility resources, which can occur only in an unregulated environment,” the coalition stressed. “Many utilities, including many Coalition members, are willing to make that commitment because the current unregulated environment allows the parties to work through the numerous delays and operating challenges, allows utilities to staff up when possible to address these challenges, and creates incentives for utility pole owners to undertake the extraordinary effort and expense required to accommodate such installations.

“Such incentives would disappear with Commission regulation,” the coalition added. “All proposed attachments to streetlight-only poles require the existing pole to be replaced with a new pole that is custom designed and engineered to accommodate the additional equipment and weight. Utilities would be unwilling to expand such capacity if they must undertake the extraordinary challenges associated with accommodating wireless attachments while being subjected to make-ready deadlines and regulated rates. As Chairman [Ajit] Pai explained: ‘It’s basic economics: The more heavily you regulate something, the less of it you’re likely to get.’”

The following utilities are coalition members: Arizona Public Service Co., Evergy, Eversource Energy, Exelon Corp., FirstEnergy, Hawaiian Electric Cos., Minnesota Power, NorthWestern Energy, and Puget Sound Energy.

In joint comments, Ameren Service Co., American Electric Power Service Corp., Duke Energy Corp., Entergy Corp., Oncor Electric Delivery Company LLC, Southern Company, and Tampa Electric Company said that the FCC “should deny CTIA’s request for declaratory ruling with respect to the three pole attachment issues raised in its petition. Each of the requested declaratory rulings would be contrary to the law, contrary to Commission precedent, harmful to deployment of the next generation of advanced communications infrastructure, or all of the above.”

Specifically, the companies said the FCC should (1) “deny CTIA’s request to define the term ‘pole’ within Section 224 to include utility-owned lighting assets”; (2) “deny CTIA’s request to establish overly broad limitations on a utility’s non-discriminatory electric distribution construction standards”; and (3) “deny CTIA’s request to undermine the scope of negotiated solutions within pole license agreements.”

Utilities filing as the POWER Coalition said that each of its members “fully supports practical and fair pole attachment rules that promote the deployment of 5G and broadband services. However, consistent with Section 224, those rules must preserve the rights of utility companies to make final and determinative decisions with respect to all issues of capacity, safety, reliability, and engineering, and to receive compensation for pole access, and for the services that they provide. The relief requested in CTIA’s oversteps the clear boundaries of Section 224, and would compromise not only the utility pole infrastructure, but also the current relationships between utility pole owners and communications attachers.”

The members of the coalition are CenterPoint Energy Houston Electric LLC, Dominion Energy South Carolina (f/k/a South Carolina Electric & Gas Company), Florida Power & Light Co., Gulf Power Co., Southern Indiana Gas and Electric Company (d/b/a Vectren Energy Delivery of Indiana), and Virginia Electric and Power Company (d/b/a Dominion Energy Virginia and d/b/a Dominion Energy North Carolina).

Some individual localities and municipal groups and utilities submitted separate comments in response to the WIA and CTIA petitions.

“Applying the proposed Section 6409(a) shot clock and deemed granted remedies to all authorizations would endanger public and worker safety,” complained the Communications Workers of America. “Modifications to wireless equipment and infrastructure often involve complex and technical work. While Section 6409(a) may describe the physical dimensions of eligible modifications as insubstantial, the safety concerns implicated in these modifications are considerable. Work done without appropriate procedures and with inadequate oversight can lead to dangerous conditions. For example, unsafe work can create electrocution risk; overloading that risks structures falling into the right-of-way or private property; damage to gas lines that can cause fire or explosion; and damage to other utility lines.”

“It would similarly be a risk to public and worker safety to permit the shot clock to begin to run upon a ‘good faith attempt’ to seek government approvals,” according to CWA. “Such a standard would place an unreasonable burden on local governments. Many local governments, particularly smaller municipalities, have limited capacity to process applications.”

But wireless industry entities expressed support for the petitions.

“These Petitions for declaratory ruling and a new rulemaking give the Commission an important opportunity to accelerate the deployment of 5G wireless services. Next-generation 5G services promise enormous benefits for American consumers and the economy, but 5G services will require much denser networks of cell sites than before,” said AT&T, Inc. “Although wireless providers have already invested billions of dollars to deploy 5G and to begin offering service, the process of deployment is ongoing and the nation remains at a critical juncture in the global race for 5G leadership. Accordingly, the Commission should continue to take all reasonable steps to clear away any remaining regulatory hurdles that would prevent the most rapid possible deployment of 5G.”

AT&T added, “As these Petitions demonstrate, local government approvals for the deployment of cell sites continue to be such a hurdle. In particular, as the Petitions show, localities are misinterpreting many aspects of the Commission’s rules implementing Section 6409(a) of the Spectrum Act. In Section 6409(a), Congress federalized the approval process for collocating transmission equipment on existing towers and base stations that local authorities have already vetted and approved for use as wireless broadband infrastructure. Indeed, it is important to emphasize that Section 6409(a) applies only to incremental changes—i.e., to proposed modifications that would not ‘substantially change the physical dimensions’ of such existing towers and base stations. As Congress rightly saw, requests to make incremental changes to existing infrastructure typically should not pose difficult approval issues, and therefore Section 6409(a) mandates that a state or local government ‘may not deny, and shall approve’ any eligible facilities request for such modifications. The Commission’s implementing rules include a 60-day shot clock that gives local authorities plenty of time to consider any legitimate issues that may arise in the approval process, but which ensures that they ‘approve’ such requests, and not ‘deny’ them through inaction. As the Petitions document, however, many localities are violating the Commission’s rules and claiming that various types of eligible facilities requests (‘EFRs’) fall outside the Section 6409(a) process and the 60-day shot clock.”

“The Commission can further promote infrastructure deployment by granting CTIA’s and WIA’s recent petitions seeking clarification of the Commission’s rules implementing Section 224 of the Communications Act and Section 6409(a) of the Spectrum Act of 2012 (‘Section 6409’), and seeking a rulemaking regarding Section 6409,” said Verizon Communications, Inc. “Regarding Section 224, the Commission should confirm that a light pole is a ‘pole’ and that utilities cannot make blanket denials of access to poles or portions of poles. With respect to Section 6409, CTIA and WIA correctly explain that further relief is needed to prevent localities from eroding Section 6409’s mandatory approval language and to help ensure that Section 6409 provides the maximum public interest benefits by speeding wireless broadband deployment.”

“For the foregoing reasons, the Commission should grant the CTIA and WIA petitions and adopt the requested Declaratory Ruling clarifying and interpreting Section 6409(a) of the Spectrum Act, Section 224 of the Communications Act, and the FCC’s rules implementing both statutes,” said T-Mobile US, Inc. “By taking these steps, the Commission will continue to facilitate the provision of advanced wireless services, including 5G, to customers throughout the Nation.”

“The Commission has ample authority to grant the requested relief,” T-Mobile argued. “Under Section 5(d) of the Administrative Procedure Act (‘APA’) and Section 1.2 of the FCC’s rules, the Commission has authority to issue a declaratory ruling to terminate a controversy or remove uncertainty. The Commission should use that authority here to grant the CTIA and WIA petitions and adopt the requested Declaratory Ruling clarifying and interpreting Section 6409(a) of the Spectrum Act and Section 224 of the Act.”

The Competitive Carriers Association said its “members continue to work cooperatively with many jurisdictions to deploy wireless networks and upgrades. However, some jurisdictions continue to ignore the mandates of Section 6409, or wield the Commission’s rules in a manner that delays rather than speeds deployment. As the Commission has seen, rules that appear clear and straightforward on paper can prove malleable and divisive in practice, particularly when the rules govern interactions with numerous and diverse localities and stakeholders.6 Those interactions can become more streamlined and less contentious when all stakeholders clearly understand the rules that frame them. Additional clarity and certainty from the Commission should enable private parties and municipalities to work together most effectively to serve their customers and constituents.”

“Many localities have engaged in good faith efforts to follow Section 6409(a) and the Commission’s rules by adopting laws and policies that encourage broadband entry and competition in a manner that is consistent with the needs of their communities. Nonetheless, WIA and CTIA provide numerous examples of localities that misconstrue or disregard Section 6409(a) and the Commission’s rules, avoid applying Section 6409(a) by exploiting loopholes and ambiguity in the statute and implementing regulations, and impose restrictions that circumvent the protections that Congress and the Commission intended to afford under Section 6409(a),” said the Wireless Internet Service Providers Association. “WISPA’s members have encountered similar examples of localities that are not fully aware of Section 6409(a) or have adopted policies that frustrate the ability of fixed wireless providers to deploy broadband facilities under the process envisioned by Congress in Section 6409(a). WISPA’s members continue to face regulatory hurdles when they submit applications for EFRs under Section 6409(a). WISPA shares WIA’s and CTIA’s concerns that despite the good intentions of some communities, there continues to be uncertainty and inconsistent application of Section 6409(a) and the Commission’s rules.”

“Access to utility infrastructure has likewise been critical to the deployment of wireline and wireless telecommunications services, with 47 U.S.C. § 224 (‘Section 224’) and its regulations ensuring access for third-party attachers. As next generation services are deployed under this framework, clarification from the Commission on issues such as access to utility light poles, impermissible prohibitions and restrictions on access, and other issues related to pole attachment agreements and construction standards will aid stakeholders’ understanding of these matters and concurrently expedite deployment,” said Crown Castle International Corp. “For these reasons, Crown Castle supports the Petition for Declaratory Ruling of CTIA on Section 224 and urges the adoption of the relief requested therein. Taken together, these Petitions present this Commission with an opportunity to continue its important work by providing regulatory certainty and fostering an environment of clarity and collaboration for our nation’s wireless networks and supporting infrastructure.”

American Tower Corp. said it “supports two particular requests set forth in the WIA/CTIA Petitions. The first such request, in which WIA seeks a rulemaking to revise current rules that define all collocations on existing towers involving compound expansions as ‘substantial changes’ (i.e., not EFRs subject to Section 6409 processing), encourages revisions that would allow for limited compound expansions related to qualifying collocations. The second request, coming from both WIA and CTIA, seeks to clarify the definition of ‘concealment element’ as used in the Section 6409 context. The FCC’s granting of both requests will increase efficiency of wireless infrastructure deployment and serve the public interest.” ExteNet Systems, Inc., also endorsed the petitions.

“Unfortunately, obstructive utility behavior is not limited to the matters raised in the CTIA PDR. Some utilities prohibit deployers like ExteNet from installing anything but their antennas on a pole, with no capacity, safety, reliability or engineering rationale for doing so,’ it said. “Further, at least one large utility has told ExteNet that it must pay market pole attachment rates when attaching its facilities to replacement poles, even where the original pole would have been subject to Commission-regulated rates and ExteNet agrees to pay the cost of the replacement pole. Other utilities are requiring ExteNet to pay excessively high pole attachment rates for strand-mounted antennas, as if the antenna were affixed to the pole. These practices are not supportable under Section 224, nor can they be squared with the Commission’s pro-deployment objectives for 5G or wireless broadband generally. The Commission can and should declare as much in this proceeding.”

ACT, which represents app developers, said, “The Commission will play an integral role in closing the digital divide, and the App Association is committed to assisting it in this effort. Although the Commission has made strides in getting more people connected, further improvements to the Commission’s frameworks are needed. We believe that this proceeding presents the Commission with an opportunity to promote the deployment of needed broadband infrastructure. This proceeding is particularly important for stakeholders deploying TVWS technology and 5G networks that will support our members’ IoT products and services. Thus, providing the relief sought in each of the petitions will ensure that our members have access to improved broadband infrastructure needed to create mobile apps that revolutionize the consumer and enterprise experiences for all Americans.”

Nokia said it “supports the Commission’s ongoing efforts to review the rules governing siting of the infrastructure critical to the Nation’s communications networks. The Petitions submitted by CTIA and WIA provide several common-sense reforms that would further the Commission’s and Congress’s goals and benefit communities across the country.”

ACA said it “agrees that each of these matters are of significant concern not just to wireless providers but to wireline providers as well. For instance, a wireline provider may deploy fiber to a small cell of a wireless provider located on a light pole or may deploy fiber to its own Wi-Fi transceiver installed on a light pole. Further, a blanket prohibition on attachments imposed by a utility could harm wireline providers that want access, and wireline providers would be harmed if utilities are permitted to use their bargaining leverage to effectively nullify the Commission’s rules. As such, ACA Connects submits that the Commission should issue the three declaratory rulings proposed by CTIA, so long as they apply to all providers. By doing so, the Commission will ensure that attachers, especially smaller attachers, can fully exercise their rights under the statute and the implementing regulations. In addition, by providing this relief, the Commission will not jeopardize the safety and reliability of the utilities’ infrastructure, as the statute and rules enable utilities to account for and address such concerns.”

“By issuing a declaratory ruling clarifying the meaning of Section 6409(a), the Commission can ensure that EFRs receive the streamlined treatment they are entitled to under the Spectrum Act,” the Free State Foundation said. “As further described in the appendix to this comment, the Commission ought to clarify circumstances in which EFRs may not be denied based on ‘concealment elements.’ For instance, it should declare that local governments evaluating EFRs may only consider concealment elements in place when the cell site was originally approved. The Commission should clarify that shot clocks for local decision-making on proposed modifications begin to run upon applicants' good faith attempts to request approval, and also that wireless infrastructure providers are allowed to make such modifications if shot clocks lapse without action and local governments withhold permit approval paperwork. Furthermore, the Commission should declare that Section 6409(a) prohibits imposing new conditions on EFRs.” —Paul Kirby, [email protected]

MainStory: FCC FederalNews WirelessDeployment

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