Home – Towers of Power: Federal, State and Local Governments Vie for Control of 5G

Towers of Power: Federal, State and Local Governments Vie for Control of 5G

 The next generation of wireless technology, 5G, could bring major advancements in everything from entertainment to public safety. But federal, state and local governments are at odds over how that technology should be deployed and where regulatory authority over it should reside.


5G promises data transfer speeds 100 times faster than current cellular technologies, as well as lower network communication delays known as latency. Those upgrades may not only let mobile users download high-definition videos in seconds and access virtual reality while on the move, but also enable “telemedicine applications” like remote patient monitoring or even remote surgery and “smart city applications including public transit scheduling, crime detection and reporting, smart streetlights and sensors that monitor things such as air quality, water use, parking spaces, traffic flow, sewers and trash collection,” as Network World reported.


Those changes are still a ways off. But wireless providers have been offering to upgrade municipalities’ telecommunication networks with 5G technology for years. Some of them have been more receptive than others. Doylestown, Pennsylvania battled cell tower operator Crown Castle in state and federal courts for nearly two years over the company’s proposed placement of dozens of 5G “small-cell” antennas along the streets of the borough’s historic downtown. Crown Castle ultimately agreed to deploy fewer antennas, conceal them more and compensate the town for the use of its rights of way.


Other towns and cities, including New York and San Jose, have also entered into agreements with carriers authorizing the deployment of the technology. But many have also been blocked from doing so by state legislation establishing statewide requirements for small-cell installations.


Twenty-one states have passed such laws, according to the National Conference of State Legislatures. Some bar local governments from negotiating their own deals with wireless providers or impose restrictions on such agreements. For example, legislation enacted in Texas in 2017, SB 1004, capped municipal ROW fees for small-cell installations at $250 per network node, well below the $1,500-$2,500 some of the state’s major cities were charging, potentially denying them millions of dollars a year, as Governing reported.


“We just don’t need to make this a major revenue source,” said Sen. Paul Bettencourt (R), who co-sponsored SB 1004. “We should keep government out of the way of technology.”


Other states, like Hawaii, have passed small-cell laws that are less restrictive for local governments.


“In Hawaii, we took a big step forward in deploying 5G technology by instituting certainty in the permitting process while still allowing cities and counties to negotiate to address their needs with the industry,” Hawaii Rep. Takashi Ohno (D), who sponsored HB 2651, enacted last year, told NCSL.


But in September the Federal Communication Commission approved a declaratory ruling and order preempting both state laws and local ordinances that conflict with its provisions. Those provisions include “shot clock” time limits for processing applications for small-cell installations - 60 days for installations on existing infrastructure and 90 days for those involving new utility poles - as well as limits on application fees and a $270 cap on ROW charges. The order also provides guidance on when aesthetic or other state or local requirements, such as “undergrounding,” the deployment of infrastructure below ground, constitute an “effective prohibition” of service.


“The FCC is committed to doing our part to help ensure the United States wins the global race to 5G to the benefit of all Americans,” the order states. “Today’s action is the next step in the FCC’s ongoing efforts to remove regulatory barriers that would unlawfully inhibit the deployment of infrastructure necessary to support these new services.”


The agency also noted it had drawn “on the balanced and commonsense ideas generated by many of our state and local partners in their own small cell bills.” And dozens of state and local officials voiced support for the order, several of them suggesting it would address the “digital divide” between urban and rural areas. As Maureen Davey, a commissioner in Stillwater County, Montana, stated, “the Commission’s actions to lower regulatory barriers can enable more capital spending to flow to areas like ours.”


But the order has also generated plenty of pushback. NCSL and the National Governors Association filed a joint statement saying the order would hamstring any state “looking to ensure inclusive and equitable access to high-speed internet services to residents.”


Arthur Scott of the National Association of Counties’ (NACo) said the ruling’s shot clocks force “local governments to make a decision between rubber stamping applications or facing crippling litigation with these providers in court,” as Governing reported.


Local governments have also insisted they should be able to charge ROW and other fees at market rates.


“We never saw this new infrastructure as a cash cow,” John Davis, borough manager of Doylestown, told CNET. “But they’re using rights of way that belong to the public, and we deserve to be fairly compensated for it.”


Some have also disputed the contention that lowering costs in urban areas will speed up development in rural ones.


“Freeing up a dollar in one market doesn’t mean it will be spent in another,” said Blair Levin, a fellow at the Brookings Institution and former FCC official, according to CNET. “There needs to be a business case. And without that, carriers won’t build a network.”


Levin pointed out in a blog post that San Jose and other cities had reached agreements with carriers that “provide benefits to both sides and will result in deployment without the need of a top-down, one-size-fits-all framework that the FCC is preparing to impose on thousands of diverse municipalities.”


But as San Jose Mayor Sam Liccardo (D) said at the U.S. Conference of Mayors annual winter meeting in January, the way the FCC sees it, “local government is the problem,” with its “high fees, red tape and restrictive permitting,” as Route Fifty reported.


For Liccardo, who served on the FCC’s Broadband Deployment Advisory Committee until resigning early last year, the problem is “the pervasive and overwhelming influence of big telecom and industry interests over the body, and the predetermined, industry-favoring outcome,” according to a press release announcing his resignation.


FCC Commissioner Brendan Carr, in turn, has criticized Liccardo’s broadband policies, posting on Twitter that they’ve “held San Jose back,” while “thousands of small cells were deployed in other cities, closing their divides & growing their economies.”


Jessica Rosenworcel, the FCC’s only Democrat when the small-cell order was approved, meanwhile, supported the agency’s decision to shorten the time frames for state and local review of small-cell deployments, given the size and scale of the technology. But she called its decision to take away state and local governments’ ability to determine what fees and other requirements are appropriate “extraordinary federal overreach.”


“I do not believe the law permits Washington to run roughshod over state and local authority like this,” she said.


San Jose and dozens of other cities and counties have sued to block the FCC’s ruling. Their petitions were initially consolidated in the U.S. Court of Appeals for the Tenth Circuit. But they managed to get the case transferred to the Ninth Circuit, which could help them significantly, given the FCC’s order defies two long-standing decisions by that court, as Gerry Lederer, one of the attorneys representing the petitioners, told Route Fifty.


Incidentally, AT&T, Sprint and Verizon, are also petitioners. They contend the FCC’s order actually didn’t go far enough and should have provided for the automatic approval of applications that aren’t processed quickly enough.


If the local governments prevail in the Ninth Circuit, the Supreme Court could always overturn that decision. Much has been made of the Ninth’s overturn rate, the third highest of the nation’s 13 federal appeals courts between 2010 and 2015, at 79 percent, according to Politifact. But of the 11,900 cases the Ninth considered in the 12-month period ending March, 31, 2015, the Supreme Court heard only 11 of them and reversed eight, less than 1 percent of the total.


In the meantime, states continue to introduce bills dealing with 5G. Nine states have done so this year, according to NCSL. Most of the measures provide for the deployment of small-cell technology in states that haven’t already passed such legislation, including Georgia (HB 184 and SB 66), Maryland (HB 64) and West Virginia (HB 2005 and SB 3, both of which have been passed by their originating chambers). Others address the health effects of 5G technology (Montana HJR 13 and New Hampshire HB 522) or encourage cooperation between the federal government and wireless providers on 5G development (New Jersey AR 144).


If the FCC order is struck down, there will probably be more bills like the former variety. If it stands, there may only be more like the latter.