TR Daily MWCA Panelists Debate Merits of Infrastructure Items
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Friday, September 14, 2018

MWCA Panelists Debate Merits of Infrastructure Items

LOS ANGELES — Speakers at the Mobile World Congress Americas yesterday debated an item adopted by the FCC last month that declared that “blanket” state and local moratoria on telecom services and facilities deployment are barred by section 253(a) of the 1996 Telecommunications Act (TR Daily, Aug. 21) and an item the Commission plans to consider at its Sept. 26 meeting that would impose limits on fees that municipalities can charge for reviewing small cell deployments (TR Daily, Sept. 5).

The adopted and proposed items have drawn complaints from representatives for localities, including threats of legal action.

The draft item to be considered this month also would bar localities from adopting rules that prohibit the deployment of wireless infrastructure 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.

During the session yesterday afternoon, Andy Huckaba, a city council member in Lenaxa, Kan., said that while his city tries to avoid moratoria, municipalities sometimes use them when a new issue arises and they “need a pause” briefly to consider it. He said the beginning of 5G deployment “may be one of those times.”

But he said “bad players” have abused the practice and issued moratoria for long periods of time.

As for limits on fees that localities can charge to review small cell deployments, “you can’t just wave a wand and say these are all the same” regardless of jurisdiction, said Mr. Huckaba, who chairs the Ad Hoc Committee on Rates and Fees of the FCC’s Broadband Deployment Advisory Committee (BDAC).

Industry representatives during yesterday’s session pointed out that in this month’s draft declaratory ruling and third report and order, the FCC would provide flexibility to jurisdictions to show why higher fees were warranted.

The draft item would “conclude that ROW access fees, and fees for the use of government property in the ROW, such as light poles, traffic lights, utility poles, and other similar property suitable for hosting Small Wireless Facilities, as well as application or review fees and similar fees imposed by a state or local government as part of their regulation of the deployment of Small Wireless Facilities inside and outside the ROW, violate Sections 253 or 332(c)(7) unless these conditions are met: (1) the fees are a reasonable approximation of the state or local government’s costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated competitors in similar situations.”

“Based on our review of the Commission’s pole attachment rate formula, which would require fees below the levels described in this paragraph, as well as small cell legislation in twenty states, local legislation from certain municipalities in states that have not passed small cell legislation, and comments in the record, we presume that the following fees would not be prohibited by Section 253 or Section 332(c)(7): (a) $500 for a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, and (b) $270 per Small Wireless Facility per year for all recurring fees, including any possible ROW access fee or fee for attachment to municipally-owned structures in the ROW,” according to the item.

Charles McKee, vice president-government affairs for Sprint Corp., and Tamara Preiss, VP-federal regulatory for Verizon Communications, Inc., praised the draft item.

“We recognize that we’re going to have to work in partnership with the cities” to deploy 5G services, but “we have to have some way of managing deployments on a large scale,” Mr. McKee said.

“People get very excited about the ‘P’ word,” Ms. Preiss said of preemption. She said the FCC is trying to “strike a balance between a national policy to promote 5G” while recognizing that localities have “legitimate interests” in such deployments.

“It doesn’t preempt anything right out the door,” she added. She noted that states and localities can make the case for charging rates higher than those deemed presumptively reasonable in the item.

As for the fact that the FCC doesn’t plan to adopt a deemed granted provision, Ms. Preiss said the FCC seemed to try to “follow the lead of the states” in 20 state small cell bills that have become law.

She also said that a limited deemed granted remedy included in the Middle Class Tax Relief and Job Creation Act of 2012 for tower modifications has “brought a lot of compliance” by localities. She also stressed that Verizon wants to collaborate with localities on siting 5G facilities and said she agrees the industry hasn’t done enough to convince them to support 5G.

Mr. Huckaba, who also sits on the FCC’s Intergovernmental Advisory Committee, said “that industry probably hasn’t done a great job” in educating localities about the benefits of 5G technology.

Jared Carlson, VP-government affairs & public policy/North America for Ericsson, also commended the FCC for the item it plans to adopt this month, saying that the industry will need to deploy about 1 million small cells for 5G in the next few years.

Messrs. Huckaba and McKee, who also sits on the BDAC, described the panel’s process as difficult but useful because it brought a number of different parties together and forced them to talk to each other in detail. They agreed, however, that it has often been tough to reach consensus on final recommendations.

Donald Stockdale, chief of the FCC’s Wireless Telecommunications Bureau, said the agency did not expect the stakeholders to find consensus on everything, but he said that they have “generated some very useful information” and “helped illuminate the problems and, in some cases, identify some solutions.”

He noted that the draft item to be considered this month mentioned the BDAC a number of times. —Paul Kirby, [email protected]

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