Wireless Infrastructure Order Could Be Headed for 3-2 FCC Vote
FCC Chairman Ajit Pai’s proposed order streamlining wireless infrastructure rules could be headed for a 3-2 vote at commissioners’ March 22 meeting (see 1803010047), FCC and wireless industry officials told us. Mignon Clyburn and Jessica Rosenworcel are expected to dissent, or partially dissent, given concerns about the order, particularly by Native American groups, the officials said. Little definitive word is likely from either office before the meeting, and both are said to be still looking more closely at the order with two weeks to go. Rosenworcel has been on travel nonstop since the order circulated, an aide said. The FCC didn’t comment.
The order, intended to speed up siting, would clarify that deployment of small cells isn't a “federal undertaking’” within the meaning of the National Historic Preservation Act or a “major federal action” under the National Environmental Policy Act. It would cut red tape for tribal reviews of projects off tribal lands and would clarify that applicants “have no legal obligation to pay up-front fees” when seeking tribal comment on proposed deployments.
Local governments see plenty not to like in the draft order, said Best Best telecom attorney Gerard Lederer. “Local government doesn’t oppose streamlining the siting process, but this order refuses to acknowledge the detrimental impact of multiple, large facilities on historic areas or environmentally sensitive areas -- areas local governments are committed to have served, but in a manner that preserves the integrity of the area.”
The order would adopt size limits for a site’s antennas, “the least intrusive aspect of an installation,” but ignores the size of associated equipment, Lederer said. The size allowed in some industry-sponsored state legislation is as large as 28 cubic feet, he said. “That is a small refrigerator, not a Wi-Fi installation.” Since installation may be required every 500-1,000 feet, this order could usher in the day that 28 cubic-foot refrigerators scar the vistas of Colonial Williamsburg [in Virginia], historic Savannah, the Patriot Trail in Boston, old Santa Fe and other historic or environmentally sensitive areas,” he said.
“We still have miles to go before the details of the infrastructure order are settled,” said former Commissioner Robert McDowell, now at Mobile Future. “There’s plenty of time to try to make it a 5-0 vote. But even if it ends up being 4-1 or 3-2, it will stand on solid legal footing for appellate purposes. More importantly, the order’s effect will be to bring us the 5G future faster. This is a crucial initiative for the mobile economy.”
Communities that charge the highest fees for towers and pole attachments are often the first to complain about sub-par cellphone coverage, said Richard Bennett, network architect and member of an FCC Broadband Deployment Advisory Committee working group. “They won’t be able to enjoy the benefits of 5G without allowing small cells to be built, so NIMBY-ism faces a crisis,” he said of not-in-my-backyard sentiment. “Communities can either remove barriers to the 5G build out or stick with current menu of choices for both mobile and fixed broadband.”
Docket 17-79 has had few filings since Pai circulated the order last week. ACT|The App Association said Pai was right to propose change. “The future of our digital economy will require the robust capacity of a 5G network,” it said. “The rules articulated in the Commission’s Draft Order will pave the way for the United States to remain a global leader in wireless broadband and provide advanced wireless broadband capabilities.”
The FCC last week in a news release highlighted announced support for the order, including from some of the groups that opposed Pai on net neutrality. Among them, Computer & Communications Industry Association CEO Ed Black said: “In the global race for 5G, the United States needs to ensure that our regulations promote the deployment of next generation.” CTA called the plan a “thoughtful and timely blueprint for U.S. innovation leadership.”