As the global race for wireless supremacy accelerates, concern is growing that the Federal Communications Commission’s new plan to speed the deployment of wireless infrastructure could backfire by setting off an avalanche of time-consuming litigation.
The FCC plans to vote Thursday on a proposal, spearheaded by Republican Commissioner Brendan Carr, that would preempt many of the local and municipal rules that the commission claims are slowing the buildout of tens of thousands of new “small cell” wireless sites across the country.
Small cells are a relatively new type of wireless node, ranging in size from a pizza box to a medium-sized refrigerator. And they’re the building blocks for the next-generation wireless network now under construction in the U.S. and around the world—a network colloquially known as 5G, denoting the fifth major iteration of wireless technology.
Vast networks of small cells, typically attached to telephone poles or the sides of structures, will need to be deployed in cities and towns across the country in order to spread sufficient 5G-network capacity. But many municipalities say the technology is unsightly, and some have delayed deployment over aesthetic concerns. Both industry and the FCC also accuse some cities and towns of charging exorbitant permitting fees, which wireless carriers say further slows the 5G rollout.
Those delays are unacceptable, says Carr, because of the burgeoning race to 5G supremacy between the United States, China, and South Korea. The commissioner argues that whichever nation first links up their cities and towns through 5G technology will have a tremendous advantage in the international struggle for investment and the creation of new tech products, many of which will rely on 5G’s increased connectivity. And while China deployed 350,000 cell sites between 2015 and today, Carr says the U.S. deployed only 30,000 in that same period.
With that disparity in mind, Carr’s proposal would require local governments to adhere to a 60-day permitting shot clock for small cells. It would also throw out permitting fees that the FCC deems excessive, instead imposing a requirement that any fees that local governments charge carriers amount to no more than a “reasonable approximation” of the cost to the localities themselves.
Carr says it’s crucial to control permitting fees—which are typically highest in big cities—in order for carriers to have enough money to spend on wireless infrastructure for smaller municipalities. But the provision has already opened up the FCC to legal threats.
A statement by the U.S. Conference of Mayors this month said the order would have “substantial adverse impacts on cities and their taxpayers”—particularly through a reduction in funding for government services—and promised to “seek relief in federal court to overturn this unprecedented overreach by the FCC.” The National Association of Counties also opposes the FCC’s proposal.
Gerard Lederer, a telecommunications lawyer at Best Best & Krieger, is already preparing a lawsuit on behalf of local governments once the FCC’s order is finalized next week, as is widely expected. When it comes to the fee-restructuring provision in particular, Lederer says many municipal governments simply have no choice.
“The city of New York, for downtown areas, they charge $4,500 [per cell site],” Lederer told National Journal on Thursday. “Let’s say they’re entitled to $500 [under the new order]. That means they’re losing $4,000 a pole, per year.”
“The numbers can add up very quickly,” Lederer continued. “The number’s in the [billions], and local government can’t let that much money walk out without trying to figure it out.”
So far, the business community isn’t particularly worried by the threat of a lawsuit. “I think that anytime the commission acts, it’s to be expected that we’ll see some kind of litigation regardless,” said Jordan Crenshaw, the assistant policy counsel at the U.S. Chamber of Commerce’s technology engagement center. “So I’m not too concerned at this point.”
But Jessica Rosenworcel, the sole Democratic commissioner at the FCC, worries that the preemption of local permitting rules and the resultant litigation could work against the order’s main goal of speeding the spread of 5G infrastructure. The commission, wireless carriers, and local governments will all need to work together to beat out Chinese deployment of 5G tech, and Rosenworcel said a drawn-out legal battle could poison the relationship between the stakeholders.
“We’re going to have to figure out how to incentivize states and localities to be our partners in this process,” Rosenworcel said at an event Thursday. “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 ways to the courts.”
Both Rosenworcel and Lederer said the commission’s new proposal could invalidate a host of 5G infrastructure agreements between local governments and wireless carriers across the country, sending officials and industry representatives back to the drawing board. They also said it would sow deep mistrust between the two sides, slowing negotiations and potentially leading to foot-dragging by local officials.
Carr, a former general counsel for the FCC, is confident that litigation won’t lead to a slowdown in deployment. He pointed to similar appeals made by local governments against several FCC orders during the run-up to 4G wireless deployment.
“We deployed 4G, we won the race to 4G, while we were making these [legal] decisions,” Carr told reporters last week. “Local government have appealed all of those, and they’ve lost all of those cases.”
But when speed is of the essence, a win isn’t worth much if it throws the required partnerships into disarray. And while Lederer expects local governments and industry to eventually get back on track, he predicts that the lack of trust following a lawsuit will lead to a “hiccup, where unfortunately rather than partnering we’ll be litigating.”
“You’ve sat down with an organization, you’ve entered into an agreement, everybody agrees with the agreement,” said Lederer. “And then the commission acts, and the industry comes in and says ‘Oh, we’re not going to honor that agreement anymore.’ How do you sit at the table and trust that other person moving forward?”
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