Local Governments Brace for Small-Cells Fight; FCC Wireless Action Expected Sept. 26

PHILADELPHIA -- NATOA is mobilizing members for an autumn battle expected at the FCC over wireless infrastructure deployment in the right of way, while the Wireless Infrastructure Association is hearing from local government concerns about small cells, said the groups’ officials in interviews this week. Local representatives asked hard questions of industry officials -- and tensions sometimes flared -- at NATOA’s annual conference (see 1808290044 and 1808280032). “Not always an easy conversation, but it is an appropriate conversation,” said WIA Director-Government Affairs Zac Champ.

Wireless infrastructure action is expected at the FCC's Sept. 26 commissioners' meeting, said NATOA attendees and a company that wrote the agency (see 1808300041). Skyway Towers "understands the Commission plans to act in the next several weeks to remove a variety of impediments that result from local government policies." The FCC didn't comment.

Local governments are “hunkering down for a long fight,” said NATOA President Mike Lynch. “This is the hardest year” for local governments since the FCC implemented Section 6409 of the 2012 Spectrum Act, prohibiting local governments from denying requests to modify existing wireless towers, said the Boston official. NATOA General Counsel Nancy Werner urged members to tell the FCC what’s really happening in their jurisdictions because she sees “a lack of understanding of local processes” and “how complicated the right of way [ROW] actually is.” Such local filings are unlikely to change the outcome but will build a record that will help with reconsideration petitions and appeals, Werner said on a Thursday panel.

NATOA understands wireless broadband’s value and supports guidelines to streamline deployment, as in a model ordinance local groups released earlier this week (see 1808270044), Werner told us. It doesn’t want one-size-fits-all requirements, she said. Industry is reaching agreement with the big cities where it most wants to deploy 5G, she said. “I don’t know why you would want to pre-empt a city where things were already working out really well.”

Local governments aren’t convinced small cells will help the underserved in smaller and less densely populated areas, said Lynch: “I don’t think the industry adequately addresses how they’re going to take care of everybody.” Carriers don’t seem likely to use money saved on ROW fees to build out to rural areas, said Werner. If that’s their argument, they should commit to that, she said. The Cable Act at least allowed localities to require buildout to their entire communities, the officials said.

“We’re trying to address the same goals here,” said Champ, who on a panel Tuesday fielded tough questions from NATOA attendees. WIA is upfront with localities about 5G buildout expectations and attended NATOA the past three years to engage with local officials and learn their concerns, said the official. “We always come back with notes.” Philosophical differences about local control in the ROW creates friction, and this year’s NATOA has the context of about 20 states having passed small-cells laws, “a very active FCC” and Congress also weighing infrastructure legislation, Champ said. “I take the energy as a positive because … folks are interested in getting this done,” he added. “Their hearts and minds are in the right place because they want to serve their constituencies.”

WIA expects FCC wireless infrastructure action starting at the September commissioners' meeting, Champ said. “The FCC is spending a lot of time looking at what’s existing now in state legislation and trying to, as best they can, to find something that’s congruent with state legislation” and to give “some guidance and rules of the road.” The FCC is likely to give “greater specificity” about its role dealing with disputes, he said. “We’ve always had the ability to go to court, but that’s a long, drawn-out process that isn’t good for anybody.”

Federal guidance is likely to be a “ceiling,” allowing states to write more rules to streamline 5G deployment, Champ said. WIA expects more small-cells bills next year “in any state that doesn’t have it,” he said. “We don’t want to punish states that have taken the early and efficient steps to prepare their communities” for wireless broadband deployment with small-cells bills, but industry, states and localities have learned a lot since the first states passed bills more than two years ago, he said. “There’s going to be a line-drawing determination of the federal government -- Congress and the FCC -- to look at what the petri dish of democracy has come up with and find the best solution.”

NATOA Notebook

Things may look gloomy now for local governments, but the pendulum always swings back, Moss Barnett attorney Brian Grogan told a Thursday panel. Grogan sees a "concerted effort" by the federal government to go after localities but believes it will change. Local telecom attorney Ken Fellman agreed not to lose hope, noting local governments can speak loudly from the bully pulpit despite not having as many lobbyists as industry. Flipping a house in Congress this November could make things better for local governments, but wouldn't necessarily mean local governments will get their way, Fellman said. Senate Commerce Committee Chairman John Thune, R-S.D., says he's prioritizing wireless bills in September, including his small-cells bill with Communications Subcommittee Ranking Member Brian Schatz, D-Hawaii (see 1808300052).