FCC Expected to Take on Small-Cell Siting as Early as June Commissioners' Meeting

The FCC appears ready to move quickly on rules providing more certainty for companies trying to build out small cells but is running into delays at the hands of local governments, industry officials said Thursday. The FCC has in hand initial comments on a Mobilitie petition asking the agency to pre-empt state and local authority over rights of way (see 1703080011), with replies due April 7. Former officials said a June item on streamlining siting rules seems most likely, though the agency could wait until July, traditionally the biggest meeting of the summer. Numerous local government commenters urged caution in the Mobilitie proceeding, but industry commenters said companies need more certainty on timelines on siting small cells.

The votes are stacking up for early action, said lawyers active on the issue. Commissioner Mike O’Rielly said Tuesday the regulator should take quick action to accelerate the siting process for wireless facilities (see 1703070018). Chairman Ajit Pai made broadband and closing the digital divide top priorities (see 1702030039). Commissioner Mignon Clyburn is harder to predict and traditionally has been more of an advocate for local interests, the lawyers said. The agency didn't comment.

Jonathan Adelstein, president of the Wireless Infrastructure Association, said in an interview the Mobilitie petition likely will be the “basis for relatively quick action by the FCC.” There has "been long-standing bipartisan support for streamlining the deployment of wireless infrastructure, yet WIA members continue to face big obstacles that are thwarting the deployment of small wireless facilities,” said the former commissioner.

“This is an urgent problem because our members are increasingly experiencing delays, unclear and inconsistently applied local processes, burdensome requirements, limits; we’re seeing moratoria and arbitrary and exorbitant fees,” Adelstein said: Members “don’t have the time or capital budgets to deal with these delays and meet the demand that we’re seeing from our customers.” Some communities are working with industry to speed deployment and seeing fast action “and we’re seeing a lot of that,” but that’s often not the case, he said. The key focus is on how the FCC interprets Telecom Act's sections 253 and 332, which were designed to promote competition, Adelstein said. “The commission needs to reconcile inconsistent interpretations that we’re seeing of section 253 (a) by declaring that it’s not limited to outright prohibitions of service,” he said. “There are other ways that they’re not allowing service to go through.” The group also commented in the Mobilitie docket, 16-421.

“One should not confuse the great job Jonathan Adelstein is doing as advocate for the wireless infrastructure industry with what is happening in the market today or the statutory limitations on the FCC’s authority to act in the manner suggested by Mobilitie,” said Gerry Lederer of Best Best. Lederer cited a filing made by one of his clients, the Smart Communities Siting Coalition, in the docket.

“The comments offer empirical data of how the process is working very well today and highlights the special challenges of deploying infrastructure in community rights of way,” Lederer told us. “Smart Communities also documents that most of the delays are as a result of a single applicant’s failure to comply with local application processes. For instance, in Montgomery County [Maryland], it has taken Mobilitie 10 months and numerous meetings with the county staff to file a single complete application. In that same time frame, the county reviewed and approved numerous other carriers’ applications.”

Competitive Carriers Association President Steve Berry urged the FCC to move forward in a bipartisan way on siting. “Unfortunately, CCA members’ experiences with some federal, state and local authorities have, more often than not, been laden with unreasonable delays, poor communication, inflated fees, or disregard for ‘shot clocks’ and review timelines,” Berry said in a statement. “Delays and unreasonable costs waste resources that could otherwise go directly to deploying mobile broadband services. There is much the FCC can do to help ensure consumers have access to next-generation services.”

“CCA couldn’t agree more with the bipartisan comments made just yesterday [see 1703080070] during the Senate Commerce Committee hearing in favor of streamlining broadband infrastructure deployment,” Berry said. “Addressing current challenges such as unreasonable delays, inflated fees, poor communication and a neglect of review timelines will help bring new and better connectivity to much needed areas, and importantly, will stimulate the economy and job growth.” One study estimates as much as $275 billion will be invested over the next seven years on broadband, he said. “This will translate into thousands of jobs and economic growth,” Berry said. “A new streamlined process will increase states’ and localities’ revenues and spur new jobs and economic growth, which will serve them and their residents better in the long run.”

Other industry groups and companies also pressed for action on the Mobilitie petition. “Wireless providers in the United States are working toward deploying next generation 5G services to consumers and are enhancing their 4G networks, but overly-burdensome application requirements, significant delays, and excessive fees imposed by some states and localities across the country threaten to undermine providers’ ability to rapidly deploy the vast networks of small cell facilities required to maintain the United States’ leadership role in wireless,” Mobile Future said in a filing.

“Delivery on the promise of 5G will require the deployment of dense wireless networks and countless new small cells,” T-Mobile commented. “But a web of legacy federal, state, and local siting requirements largely adopted in the context of macro cell deployment and different business models stands in the way.”