TR Daily Rosenworcel Criticizes Draft Small Cell Item
Thursday, September 20, 2018

Rosenworcel Criticizes Draft Small Cell Item


FCC Commissioner Jessica Rosenworcel today criticized the draft small cell item that the FCC plans to consider at its Sept. 26 meeting, while Commissioner Brendan Carr said the agency would consider whether to make any changes to the item in response to criticism from localities.

Meanwhile, a representative of localities stressed today that litigation will be filed challenging the item, and ex parte filings from localities and groups representing them continued to be posted in the FCC’s electronic comment filing system. The filings criticized the item and some asked the Commission to stay its implementation until reconsideration petitions or appeals are considered – or at until six months after “Federal Register” publication.

For their part, industry entities stressed their support of the item and some said it should be made even stricter, including with the addition of a “deemed granted” remedy. The wireless industry says small cells are needed for 5G deployment.

The draft declaratory ruling and third report and order would bar 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. However, it would not adopt a deemed granted remedy sought by the wireless industry but opposed by localities. The item has drawn criticism from scores of localities and groups representing them.

Commissioners Rosenworcel and Carr and others discussed the item this morning at an event organized by “Politico.”

When asked directly to discuss her views on the item, Ms. Rosenworcel said, “We’re still taking a look.” But then she went on to criticize it.

“We’re going to have to figure out how to incentivize states and localities to be our partners in this process,” she said. “I’m not sure that a few bureaucrats in Washington telling them what they can and can’t do in their backyard is going to expedite that process. In fact, the only thing I think it will speed is our way to the courts.”

“The FCC is on the cusp of issuing a declaratory ruling that would invalidate so many efforts in so many cities and towns across the country,” she also complained, echoing the complaints of some localities that have negotiated small cell agreements with companies.

Ms. Rosenworcel was asked whether the FCC has a role in setting deadlines for localities to review siting applications and in the fees charged applicants.

“I think we can build some guidelines and boundaries,” Ms. Rosenworcel replied. “In the end, I think carrots are going to be much better here than sticks.”

She also said that “we need to start identifying cities that are doing this well, doing it right, and then putting out what they have done as models.” She noted that she released small cell agreements that San Jose, Calif., signed with several providers (TR Daily, June 28).

Also on the topic of 5G, Ms. Rosenworcel said that the White House’s announcement this week (TR Daily, Sept. 18) that President Trump has directed the Office of the U.S. Trade Representative to impose tariffs on an additional $200 billion of imports from China “is a terrible thing for the future of 5G.”

She noted that the list of products facing the tariffs includes antennas, switches, routers, circuit boards, and equipment for the retransmission of voice and data.

“I think it is wildly detrimental to our ability to lead in 5G, and the FCC can’t afford to put our head in the sand. We need to start speaking out,” Ms. Rosenworcel said.

The Commissioner also said that engineers in FCC field offices should conduct spot checks to validate wireless coverage maps, and the FCC should also consider using crowd-sourced data.

On the spectrum front, Ms. Rosenworcel reiterated her call for the FCC to maintain a calendar of spectrum auctions. “I think it should be a regular practice of the agency, and we are still just occasionally announcing auctions,” she said.

Ms. Rosenworcel also said the distribution of spectrum should be more dynamic, and she bemoaned the length of the FCC’s 3.5 gigahertz band proceeding.

In a separate one-on-one conversation at today’s event, Mr. Carr, who is the point person for wireless infrastructure issues at the Commission, touted what he said would be the benefits of the small cell item scheduled to be considered next week.

He was asked whether the agency would modify the item in response to complaints from localities.

“We’re still considering some of the feedback that we’re hearing on that,” he said. “There certainly are communities that have pushed back pretty strongly. I get that. That was expected.”

He added that he was “pleasantly surprised” that “several dozen” state and local officials and entities wrote the FCC to express support for actions the item would take.

“What they’ve been saying is that these high fees charged in a couple of must-serve, big cities [are] pulling in the capital that otherwise could be deployed in their communities. And so they’ve written to us and asked us to take action,” he said.

He was asked about the value of the FCC’s requiring carriers to build 5G in a certain amount of communities in exchange for the streamlining item.

Mr. Carr replied that he was “open to conversations” about whether the FCC should tighten its build-out rules, but he cited an industry analysis that concluded that the rule changes would save $2 billion in unnecessary costs and stimulate an additional $2.4 billion in infrastructure investment.

He also acknowledged that the item would not grandfather any existing agreements between localities and providers. But he said the parties could go ahead with those negotiated if they want to.

“At the practical perspective, there’s really going to have to be a lot of good-faith effort and negotiation from the carrier side and from the local government side,” he said. “This decision is not really designed to tie anybody’s hands on either side of it. There’s a lot of room for negotiating and having discussions, and that’s what it’s going to take.”

Mr. Carr also said that “we’ve really taken our guidance and our cue from the state and local leaders that have championed these ideas” in 20 laws passed by states, adding that the item “by and large” would not preempt state laws.

Mr. Carr also noted that Congress, in the 1996 Telecommunications Act, said that state and local laws can’t pose an “effective prohibition” on the deployment of service.

Mr. Carr was also asked about an idea floated in the Trump administration to nationalize a 5G network (TR Daily, Jan. 29). “I think that idea’s a nonstarter, from my perspective,” he said. “The U.S. led the world in deployment of 4G and the U.S. free market system is fully capable of competing with China in winning this race to 5G.”

During a subsequent panel discussion, Gerry Lederer, an attorney for Best, Best & Krieger LLP who represents local governments, noted that localities plan to challenge in court the item to be adopted next week.

“We believe that it’s both inconsistent with the Telecommunications Act and violates our constitutional protections,” he said. “A local government is just like every other property owner, and you can’t take our property, or you can’t demand that we provide it at a reduced price, without providing compensation. And ... we will go there in the courts. But in the meantime, we will continue to try to work with the Commission to make this as transparent and as smooth as possible.”

Mr. Lederer said that there’s “absolutely no space at all between” the Commission’s support for 5G deployment and the support of localities for such services. “We want 5G,” he added. “This is not about whether or not we want 5G.”

He noted that Commissioners Rosenworcel and Carr highlighted the U.S.’s leadership in 4G deployment, which he said was able to occur because of the support of localities.

But Mr. Lederer bemoaned what he said was the “disparate treatment” of localities vs. federal government agencies.

In the MOBILE NOW Act, which became law in March (TR Daily, March 23), federal agencies were given 270 days to review applications for infrastructure deployments with fees based on “full market value,” Mr. Lederer said. By contrast, the FCC would give localities 60 days to review applications for collocations and base fees on a “reasonable approximation of our costs,” he noted.

Mr. Lederer also said it is false to suggest that if companies pay lower fees in larger cities, they spend more in rural areas, noting that there is “no requirement” that such rural deployment occurs. He said that the existence of fiber will play a large role in which communities get 5G service.

Asked if there are “bad actors” among localities, Mr. Lederer replied that there are “bad actors” in the industry.

Mr. Lederer also said it is a “false narrative” to suggest that small cells are often the size of pizza boxes. He said the antennas may be that size but that associated equipment on poles is the size of refrigerators.

He also echoed the call of localities in asking the FCC to act in its RF standards proceeding, which has been pending for more than five years (TR Daily, March 29, 2013). The review is the first time the FCC has considered whether to reexamine its RF standards since they were adopted in 1996. “The RF standards are now old enough to vote,” Mr. Lederer said.

Centennial, Colo., Mayor Stephanie Piko said that her city has gotten small cell applications and that it established a small cell policy in coordination with industry. “We had a great relationship with our partners,” she said.

During today’s event, industry representatives expressed support for the small cell order and declaratory ruling.

Sandra Rivera, senior vice president and general manager-Network Platforms Group at Intel Corp., cited the importance of “somewhat frictionless” siting rules, and she also said the U.S. must move ahead and make mid-band spectrum available.

Jordan Crenshaw, assistant policy counsel at the U.S. Chamber of Commerce’s Chamber Technology Engagement Center, said that the fees carriers face in siting infrastructure pose a barrier to deployment.

But in a joint ex parte filing at the FCC in WT docket 17-79 and WC docket 17-84, the National Association of Telecommunications Officers and Advisors, the National League of Cities, the National Association of Counties, the United States Conference of Mayors, and the National Association of Regional Councils reiterated their complaints about the draft FCC item.

“The Order establishes an unreasonable and unworkable standard of what constitutes an effective prohibition, which will impose costs on local governments and interfere with public safety and other local protections that are the heart of localism. In short, the Order undermines local governments’ ability to ensure fair and reasonable deployments, and fails to ensure any public benefits,” the filing said.

The groups added that (1) the FCC’s proposed definition of “effective prohibition” is too broad and is not supported by the Communications Act; (2) the shot clock deadlines “do not leave sufficient time for local governments to complete necessary reviews to protect the public safety or meet basic due process standards, and place an unreasonable burden on local governments”; (3) the proposed cap on fees are not supported by the Act and are not reasonable; and (4) the FCC should stay implementation of the order pending petitions for reconsideration and judicial appeals – or, at the very least, for six months after “Federal Register” publication of the item.

“The Order is a sweeping change to the status quo, preempting inconsistent state small cell bills and local ordinances, as well as existing local agreements with providers, thwarting not only state and local policy choices, but also providers’ business decisions,” the groups argued. “The impacts of the proposed Order on local governments and providers are significant and cannot easily be remedied or reversed should the Order be reconsidered or vacated on review. Any small wireless facilities deployed under the Order would be subject to uncertainty — such as potential changes or removal and additional fees — should the rules under which they are deployed be changed. State and local governments as well as providers would benefit from the certainty of operating under rules that are not undergoing legal review.

“While we urge the Commission to delay the effective date of the Order pending any reconsideration or court review, in the event the Commission opts not to do so, we ask the Commission to delay the effective date for at least six months after publication in the Federal Register to give local governments a sufficient transition period to amend their codes consistent with the Order and new rules.

“This is especially important given the requirement that, to be applicable, aesthetic requirements must be in place prior to application submission,” the groups added. “Local governments cannot discharge their basic duty of protecting the community if they do not have time to update their requirements. Further, as discussed above, well established state and local land use codes include processes that cannot be completed in the time provided in the Order, necessitating changes not just to right of way-related ordinances, but also in many cases generally-applicable land use codes. A delayed effective date is needed to provide sufficient time for local governments to implement thoughtful requirements that balance local processes and concerns with providers’ deployment needs, which is best achieved where there is time for input from the public and wireless providers.”

In a separate filing, the Smart Communities and Special Districts Coalition supported an FCC delay of the item’s implementation “until the resolution of any reconsideration petitions and appeals, or, in the alternative, for a 6-month transition period to allow time for localities to implement new regulations consistent with the Draft Order.”

“Smart Communities is deeply troubled by the Draft Order and believes it will lead only to litigation, delays in deployment, and additional expenses for all parties,” said a cover letter for a 56-page filing. “We say this based on our belief that the Draft Order imposes mandates with which local governments cannot comply, but just as importantly, cannot understand as the Draft Order requires substantial clarification. The Draft Order is truly unprecedented. Not only is its departure from well-established legal precedent developed by the Commission and the courts evident, but it imposes requirements that are neither consistent with nor supported by state laws governing wireless deployment, despite the Commission’s suggestion to the contrary. The Draft Order will create substantial uncertainty in the market for local governments and wireless providers alike, which Smart Communities believes will result in delayed, not accelerated, broadband deployment.”

The filing asked the FCC to clarify issues such as how the shot clock deadlines will apply to “all authorizations,” how the shot clock deadlines interact with laws on state historic and environmental reviews, and the definition of “infrastructure.”

For their part, industry entities continued to submit filings supporting the item.

“The Draft Item carefully balances interests and provides useful parameters for consideration of other requirements applicable to deployments,” said T-Mobile US, Inc. “The Draft Item balances localities’ role in overseeing deployment, including the impact on aesthetics that such deployment may have, with the goal of promoting broadband deployment. The Draft Item sets out a standard to be applied when considering whether an aesthetic requirement may constitute an effective prohibition of service contrary to Section 253(a) – specifically, the requirement must be (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) published in advance. The Draft Item provides further elucidation, noting that aesthetic requirements are reasonable if ‘they are reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-of-character deployments.’ This standard and the Commission’s further explanation should provide some clarity and reduce disputes regarding local aesthetic requirements.”

CTIA continued to urge the Commission to adopt a deemed granted remedy.

“The Commission states that it finds convincing the arguments regarding the agency’s authority to adopt a deemed granted remedy, explaining ‘we see merit in the argument made by some commenters that the FCC has the authority to adopt a deemed granted remedy.’ And, the record includes strong legal support for the Commission’s authority to adopt such a remedy for violations of its Section 332 shot clocks,” the trade group said. “CTIA therefore continues to urge the Commission to adopt an enforceable deemed granted remedy. Such action would help to enforce Congress’s expectation that action on applications be timely, and it would be consistent with actions taken in nearly all of the states that recently enacted legislation to modernize small cell siting policies.”

CTIA added that if “the Commission declines to adopt a deemed granted remedy at this juncture, it should at a minimum extend its presumption and expectation of injunctive relief to violations of all Section 332 shot clocks, not just the new small wireless facility shot clocks. The Draft Ruling and Order provides an enhanced remedy only for its small wireless facility shot clocks. This leaves towers and non-small wireless facility collocations in the same position they are in today when localities fail to timely act — putting them at a distinct disadvantage compared to facilities that meet the small wireless facility definition. Yet, the record shows many shot clock violations involve macro facilities or facilities that would not meet the small wireless facility definition, and that such facilities remain critical to wireless deployment, particularly in rural areas. The delay and substantial litigation costs associated with missed shot clocks slows and thwarts those deployments. The Commission should eliminate this potential disparity.”

NTCA said “that, even as the Declaratory Ruling focuses primarily upon small cell wireless infrastructure, its reasoning with respect to the scope of Section 253 governs with equal force in the context of all kinds of network facilities and technologies. Thus, the same logic that underpins the legal analysis and assessment of marketplace barriers stated in the Declaratory Ruling logically applies on a technology-neutral basis to deployment of wireline and wireless network facilities alike. Indeed, such an interpretation is essential as a practical matter to further the specific goals of the Declaratory Ruling in seeking to promote deployment of next-generation wireless services. To a significant degree, 5G wireless services will rest upon a foundation of wireline backhaul facilities: even where licensed spectrum may be available to function as backhaul in some instances, the densification of small cells that will power this new technology will certainly require a densification of fiber not seen before in this nation’s history. This is particularly true in rural areas where densities are low.” —Paul Kirby, [email protected]


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