January 3, 2019; by Jeff Schervone
Municipalities across the United States are suing the Federal Communications Commission (“FCC”) to stay, or at least slow down, the rollout of 5G small cell deployment onto utility poles in local communities. In September 2018, the FCC issued its Declaratory Ruling and Third Report & Order, Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment (the “September Order”).
5G is touted as a revolutionary next generation wireless network with “transformational capabilities.” 5G wireless will purportedly empower cutting edge and future technologies, such as ultra high-speed internet, self-driving (or flying?) vehicles, virtual reality (VR), the Internet of Things (IoT) and applications “we haven’t even conceived of yet.” Utility poles are poised to be the backbone of the new 5G broadband network infrastructure.
For several years now, wireless technology has advanced towards 5G. Wireless companies have lobbied, built relationships, laid infrastructure and geared up for rapid 5G wireless deployment across the country and into local communities. This past summer, the FCC auctioned 5G operation spectrum. In localities, the small cell deployment involves attaching small wireless facilities to existing or new utility poles. The high frequency technology is limited by range, requiring “densification,” meaning attachments mounted relatively close together, anywhere from 200 feet to 2,500 feet apart onto utility poles. The ‘wireless facilities’ include power sources, transmitters, antennas, connectors and other gear.
Municipalities and local governments are already facing waves of applications for Right-of-Way (“ROW”) access onto utility poles, as giants Verizon, AT&T, others and their business partners race to install and commercially covet the new 5G infrastructure. In one case, Palo Alto’s Architectural Review Board pushed back against recent applications by Verizon for clusters of 5G small cells, with both residents and board members raising concerns about esthetics, safety and compliance with ordinances. Below is a picture of a location with a before picture and a proposed after image.
Here is another before/after proposal, the green fake-mailbox is part of the small wireless facility, housing radio transmitters and other gear:
The FCC issued the September Order to regulate local government authority under Sections 253(a) and 332(c)(7) of the Telecommunications Act of 1996, as amended, in order to promote uniform, widespread and rapid deployment of 5G small wireless facilities. The September Order preempts local “barriers” to deployment of 5G small cell attachments to utility poles.
In order to overcome local requirements and inconsistencies that would hinder deployment, the FCC mandated, among other things: (a) a cap of $500 for non-recurring fees, including a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, or $1,000 for non-recurring fees for a new pole (i.e., not a collocation) intended to support one or more Small Wireless Facilities; (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;” ” (c) Shot Clocks: 60 days for review of an application for collocation of Small Wireless Facilities using a preexisting structure and 90 days for review of an application for attachment of Small Wireless Facilities using a new structure.
States have also proposed legislation to speed deployment of 5G. New Jersey’s implementing bill is titled the “Small Wireless Facilities Deployment Act.” Like the FCC September Order, the pending bill (A2244-2018) provides that if an application is not acted upon within the shot clock timeframe, the application is deemed approved.
Municipalities from across the country are challenging the FCC’s September Order. Dozens have filed or joined lawsuits filed against the FCC to petition for review of the September Order. In October, 2018, the actions were consolidated by the Judicial Panel on Multidistrict Litigation to the Tenth Circuit, Appellate Case Number 18-9571. Notably, the municipalities filed a motion to transfer the MDL from the Tenth Circuits to the Ninth Circuit. Can’t imagine why.
On December 17, 2018, Plaintiffs filed a Motion to Stay the September Order pending appeal since the Order is due to go into effect on January 14, 2019. The municipalities argue that the FCC preemption infringed their constitutional authority over local public ROWs and that the rates particularly the $270 recurring fee, and shot clocks are unreasonable. For example, the City of Seattle typically collects $1,874 per attachment per year. Approving authorities have also expressed concerns about clutter, and skepticism that the process is being shoved down their throats. The FCC and the wireless industry filed responses arguing the September Order is proper under its authority and Sections 253 and 332.
One issue that could cause another look and not addressed in the filings is whether the critical components used including power supplies, transmitters, antennas, are compromised by supply chains that commingle in any way with China or others. Many conglomerates that feed the 5G electronics supply chain may have murky ties to Chinese operations and interests. 5G densification can not be allowed to become a Cyber Trojan Horse. Reportedly, a White House official said the United States was “working across government and with our allies and like-minded partners to mitigate risk in the deployment of 5G and other communications infrastructure.” Let’s hope they do.
As one Commissioner in Palo Alto said: “It seems like there’s a lot of moving parts to this and a lot that we don’t know.”