Carr Says FCC Wireless Order Shouldn't Stop State, Hill Bills

The wireless industry applauded. Local government officials who sounded alarm at last week’s NATOA conference (see 1808300028) remained concerned while welcoming some Carr considerations.

The draft won’t “disturb nearly any” of the provisions of small-cell bills that about 20 state legislatures enacted, Carr said in his speech. It proposes rates, shot clocks and other policies that are “just above” settings of nearly every state law, he told us. It wouldn’t override state or local governments that already cap fees at lower amounts but would reduce state caps that are higher than the rule, he said. Carr welcomes states without small-cells laws to pass bills to further speed deployment by “setting limits below the general ceiling that we do,” he said. Carr supported the Streamlining the Rapid Evolution and Modernization of Leading-Edge Infrastructure Necessary to Enhance Small Cell Deployment Act (S-3157), which would implement a “reasonable process and timeframe guidelines” for state and local consideration of small-cell applications (see 1806290063).

The order would set shot clocks for local reviews of small-cell deployment proposals, with a 60-day deadline for projects on existing structures and 90 days for new infrastructure construction, similar to many state small-cells laws, Carr said. The item wouldn't propose a deemed-granted remedy, which “many local governments opposed on the grounds that it would allow deployments without their authorization,” he said.

Sen. Todd Young, R-Ind., praised the draft order during Tuesday's event as an opportunity to “give all Americans a fair shot at fast, affordable broadband” and ensure “America can lead in the race to 5G.” Rep. Susan Brooks, R-Ind., said the draft would aid the U.S. in “leading the world” on 5G.

Carr Seeks Resolution

“My instinct is let’s try to get to a resolution here,” Carr told us. “I didn’t think we needed to get a deemed-granted remedy to do that.” It would include procedures for cases where local governments face a flood of new applications, he said. The proposal allows batched applications, so a carrier could include 100 small-cells on one form, he said. “If it happens to be a town and there’s a legitimate overload -- they legitimately can’t process 100 in the shot clock,” the locality could make a showing to the FCC after the clock runs out that it faced an “exceptional circumstance,” he said.

Carr understands the concern of localities asking why there’s no shot clock for industry to deploy after their application is speedily approved. The FCC has buildout obligations for licensed carriers, “and I’m open to a conversation about other mechanisms to make sure that carriers are building out to the communities that they’re licensed to provide” service, he said.

The draft lets localities impose cost-based fees on deployments but requires them to “reasonably approximate” a local government's costs for the project, Carr said in the speech. "Local governments should not be required to subsidize … infrastructure,” but excessive fees slow deployment, he said. The order would preserve local governments’ right to aesthetic reviews of projects if they are reasonable, nondiscriminatory and announced in advance, he said. “Reasonable is a flexible concept” that allows different aesthetic rules in industrial versus historic areas, Carr told us.

“We tried to strike a balance that recognizes all the good work” done by local governments but addresses bad “outlier conduct,” Carr said. “I certainly don’t view this as really anything other than having state and local partners.” Many community officials want broadband deployment and don’t want to be barriers, he said. The commissioner plans to discuss the FCC’s 5G role at a Sept. 17 American Enterprise Institute event.

The FCC aims to reduce “excessive local fees for processing permits and allowing access to public rights of way" and address "unreasonable delays in authorizing deployments,” blogged Chairman Ajit Pai. He called it "another critical step to promote U.S. leadership in 5G.”

Mixed Reviews

Local governments are glad there won’t be a “deemed-granted" rule but want to review the draft and remain opposed to FCC action in principle.

“While we appreciate [Carr] engaging local governments and removing the ‘deemed granted’ clause, it would be better to obtain balanced obligations in return for use of public property,” said ultraMontgomery Program Director Mitsuko Herrera of Montgomery County, Maryland. “Carriers are already deploying in markets where there is a strong potential customer base.”

It was “good to hear” Carr say he listened to local government concerns, said local government attorney Ken Fellman, describing himself as "cautiously optimistic." But no FCC action is needed because local governments proactively seek deployment, the former NATOA board member said.

“Local government property is constitutionally protected from government takings,” noted Best Best’s Gerard Lederer. Communications Act “Section 332(c)(7) contains no mandate that local government provide their property at cost and Section 253(c) makes clear that local governments are entitled to fair and reasonable compensation, which numerous courts have made clear is not the same as the recovery of costs,” he said.

Cities "disagree with the suggestion that local governments, rather than market forces, are the primary reason that cutting-edge mobile broadband has not reached all Americans," said National League of Cities Principal Associate-Technology and Communications Angelina Panettieri. "We do not believe that the FCC should impose the proposed new shot clock category on local governments, even without a deemed granted provision, nor should it be in the business of offering local property to the private sector for below-market rates."

Industry Cheers

Industry praised the proposal.

Carr “rightly reaffirmed a balanced framework with localities over wireless infrastructure decisions where appropriate, while ensuring that commonsense guardrails apply to actions that inhibit broadband deployment,” said Wireless Infrastructure Association President Jonathan Adelstein. Local-industry partnerships are "crucial to 5G deployment and Commissioner Carr’s announcement strikes a positive tone," he said.

“We urge the FCC to support these proposals for modernizing outdated infrastructure rules,” said CTIA President Meredith Baker. Some states and localities are updating siting rules and fees for small cells, but “too many municipalities continue outdated practices and impose cost structures that delay service and deter investment,” said CTIA Senior Vice President-Regulatory Affairs Scott Bergmann.

“In some areas, providers face daunting challenges as they seek to deploy the small cells that will be the backbone of our nation's 5G future,” said Verizon Senior Vice President-Public Policy Kathy Grillo. “Many policymakers at the state and local level have responded to these challenges with helpful reforms, and local officials will continue to play a pivotal role in managing public rights-of-way and protecting legitimate local interests.”

"The FCC has recognized that small cells are different, and that outdated permitting requirements designed for an earlier era could threaten U.S. leadership," said Telecommunications Industry Association Senior Vice President-Government Affairs Cinnamon Rogers.