FCC Approves Clarity for 5G Collocations 3-2 Over Dissents by Democrats

Commissioner Brendan Carr, who spearheaded work on the ruling and NPRM, said some in state and local government support the FCC (see 2005290052). Building a new tower takes two years or more, he said. “Reusing macro towers through collocating multiple providers and updating equipment can provide the public the benefits it deserves, wide coverage and fast connections, while avoiding the cost and delays associated with building new towers from scratch.”

“I’m excited about the statutory ruling because these are issues that were teed up, that we had a full record on and that our record shows is going to help accelerate 5G build, including in rural areas,” Carr said in an interview. Carr said he saw that last week on a Maryland farm where he watched a crew swap a 2G antenna for a new 5G one. “This decision is going to help replicate that type of a result in more rural communities,” he said.

The agency ignored a “modest request” for more time to review the item, Rosenworcel said: “I don’t get it. Why can’t we acknowledge what is happening around us?” The “sad truth” is this is not the first time the regulatory body ignored such concerns, she said. “It was just a few weeks ago when city officials and local firefighters asked the FCC to give them more time to weigh in on the court remand of our misguided decision to roll back net neutrality. But we didn’t grant their request.”

Starks also cited the protests and deaths from COVID-19. “State and local governments form the front line for all of these issues,” he said. "Under the best of circumstances, three weeks would not be enough notice for such an important decision," Starks said. Even in good times, local governments “operate on tight budgets and limited resources,” he said. The rule change will lead to litigation and “time-consuming and costly disputes about intent and reasonableness between local governments and industry,” Starks predicted.

Changes Made

At his request, the item now provides more details on the documentation needed to start the shot clock “and to evidence that concealment elements were envisioned when obtaining a locality’s approval,” said Commissioner Mike O’Rielly: “Such guidance is necessary so that all parties understand expectations and to avoid disputes down the road.” The NPRM now seeks comment on a proposal to allow minimal compound expansions under Section 6409 streamlined processing, he said: “I am pleased that my request was accepted to make this a proposal, as opposed to simply seeking comment.”

CTIA and the Wireless Infrastructure Association sought the clarifications last year, but local government groups continued to raise concerns.

“As counties are keenly focused on combating the COVID-19 pandemic, we are disappointed to see the FCC advance an unnecessary and untimely burden on our nation’s local governments in the absence of any basis for action,” emailed Arthur Scott, National Association of Counties associate legislative director. “We all support wireless deployment to provide the best possible service to our communities,” said NATOA General Counsel Nancy Werner: “I cannot understand the urgency of this item, or why these clarifications must be pushed through now.”

“When you’re trying to build out a network quickly there’s nothing faster than siting antennas on existing infrastructure because you get immediate results,” said WIA President Jonathan Adelstein in an interview. Adelstein said the next big focus will be infrastructure legislation. He’s not sure whether the ruling will face a court challenge but said the FCC should prevail. Section 6409 of the 2012 Spectrum Act “is the strongest authority that the FCC has,” he said: “It says a locality shall approve and may not deny. The reason is this is just collocation.”

“By clarifying the rules allowing wireless providers to upgrade existing facilities with next-generation equipment, the FCC is helping ensure America will maintain its leadership in the emerging 5G economy,” said Scott Bergmann, CTIA senior vice president-regulatory affairs. The National Association of Tower Erectors, AT&T and Verizon also praised the clarification.

Chairman Ajit Pai said the COVID-19 pandemic means the FCC should do more to promote 5G. It's “an iron law you cannot have broadband without broadband infrastructure,” he said. Local governments had more than enough time to respond, he said. “The petitions on which we’re acting today were filed in August and September,” he said: “The entire period for public comment on those petitions took place last year … well before the COVID-19 pandemic.”

House Commerce Committee Republicans hailed FCC approval of the infrastructure order, which they backed last week. Committee Democrats had sought delay (see 2006020037). Michael Burgess, R-Texas, also praised the FCC. “There is no reason to delay the implementation of American made 5G network infrastructure when it is a simple technological upgrade,” he said. “The FCC vote today will help to ensure America does not fall behind in the deployment of 5G technology.”

Meeting Notebook

The FCC will continue to telework through "at least" the end of June because of the COVID-19 pandemic, Pai said at a post-meeting news conference Tuesday, answering our query. The agency will make a decision on possibly reopening "once we are ready" to make such a decision, Pai said. He said he has been in discussions about the matter with bureau and department heads, and employee safety is his primary concern.

O’Rielly voted to approve a declaratory ruling and accompanying NPRM in docket 20-145 on ATSC 3.0 with the rest of the commission but was critical of several aspects. The final items are expected to be little changed from their draft versions (see 2006050054). “I do question whether this is the best use of our resources,” said O’Rielly, saying “we probably could have lived without the effort to artificially rebrand the nonbroadcast, datacasting services with the questionable term ‘Broadcast Internet.’” The declaratory ruling proceeding was led by O’Rielly’s fellow commission Republican, Carr. O’Rielly said during a post-meeting news conference his comments weren’t directed at Carr, but Carr repeatedly advocated for the term “broadcast internet,” to be applied to ATSC 3.0 datacasting, which he said in a post-meeting news conference should be differentiated from NextGen TV offerings. The item clarifies the rules for broadcasters using their spectrum for wireless capacity, Carr said. “ATSC 3.0 is the technology that will allow broadcast spectrum to play an even greater role in this converged market for connectivity.” Rosenworcel expressed concern about ATSC 3.0’s lack of backward compatibility and its suitability for applications such as telehealth, but lauded the proceeding as “responsibly” exploring “legal and technical issues that stand in the way of this standard’s further development.”

Commissioners approved 5-0 an NPRM seeking comment on 5G wireless backhaul and deployment of broadband services to aircraft and ships, among other uses, in the 70/80/90 GHz bands and as expected (see 2006050055). The NPRM now includes questions sought by SpaceX and Hughes on using the bands for fixed satellite services, FCC officials told us. Rosenworcel said the NPRM could lead to better in-flight broadband. “As many travelers know, the demand for in-flight internet can outpace what airlines can provide,” she said: “The good news is that next-generation, high-throughput satellites are being launched to meet this demand. Also good news is the rulemaking we start today.” The high-frequency bands “are unused or underused in large parts of the country with current use of the spectrum primarily concentrated along a few high-traffic routes,” the FCC said. Allowing the use of smaller antennas could “lower costs, facilitate network densification, and help support the provision of backhaul for emerging 5G services,” it said. Revised antenna standards “could promote 5G deployment and network densification because they would allow for the use of smaller and less expensive antennas,” said Anthony Patrone, Wireless Bureau attorney who presented the item. The NPRM also authorizes “point-to-point links to end points in motion in the 70 and 80 GHz band and to classify those links as mobile service,” he said.

O’Rielly said he's working with Carr on an item addressing some 5,000 twilight towers. In 2017, commissioners approved 5-0 a public notice on how the towers could be made available for collocation of wireless facilities without additional historic review (see 1712140049). “This is something we can do this year,” O’Rielly said in a news conference. Carr “is trying to work through machinations to make that happen,” he said. O’Rielly still expects the FCC to address the 5.9 GHz band this summer: “My conversations suggest we’re in a very good place.” Carr told us “every infrastructure reform that we’ve engaged in is a priority.” WIA’s Adelstein told us the FCC is making progress on twilight towers, an issue that he noted has been around for many years. “It’s another collocation story,” he said: “The time is ripe to try to seal that deal."

Pai blamed the 3rd U.S. Circuit Court of Appeals for putting a “roadblock” on FCC broadcast diversity measures. His comment came in response to a question during Tuesday’s post-meeting news conference. Pai was asked about the connection Starks drew between broadcast ownership diversity and the recent nationwide protests against racial inequality (see 2006020059). The 3rd Circuit’s Prometheus ruling vacated the FCC’s radio incubator program and other ownership rule changes, and Pai said the program would have helped many minorities. The National Association of Black Owned Broadcasters and the Multicultural Media, Telecom and Internet Council challenged the program in the 3rd Circuit case, and Starks supported the court’s ruling.