Did the FCC Conspire with Mobile Providers to Court Shop 5G Rules?

January 31, 2019 | by Andrew Regitsky

Did the FCC Conspire with Mobile Providers to Court Shop 5G Rules?

It looks like we have a theme developing, one that is likely to play out repeatedly over the next two years.  That is the new Democrat-majority House of Representatives investigating the Republican-majority FCC.  Some of these investigations are valid, such as the inquiry into the sale of real-time mobile phone location data.  The latest investigation, however, is just a waste of time.  Democrats are accusing the Commission of advising mobile providers to appeal an Order that was going to be adjudicated at the Republican-hating Ninth Circuit Court of Appeals, to try to get the case moved to a friendlier court.  The horrors!  Here are the details.

On September 26, 2018 the FCC approved a Declaratory Ruling and Third Report and Order in Dockets 17-79 and 17-84 that it believes will help municipalities streamline approval and deployment of technology to facilitate 5G networks.  The Order modified laws that were designed for macro-cell installation and adapts them for the smaller micro-cells that broadcast 5G.  It applies a federal law to supersede municipal rules that could prohibit deployment of wireless service and only permits municipalities to charge fees for reviewing small cell deployments when such fees are limited to recovering the municipalities’ costs.

The Commission estimated this would save 5G providers $2 billion in unnecessary fees, stimulate $2.5 billion in additional small cell deployments, and create more than 27,000 jobs.  Moreover, the agency believes this will enable two million more homes to be served by small cells, with 97 percent of them in rural and suburban communities.

Many cities and counties were not thrilled by wireless providers saving money while their fees were limited by the Commission. Thus, 22 cities and counties led by San Jose, appealed the FCC decision to the Ninth Circuit Court of Appeals in San Francisco, a Court historically hostile to Republicans.  Their decision was explained by FCC Commissioner Rosenworcel in her dissent to the FCC Order.

Instead of working with our state and local partners to speed the way to 5G deployment, we cut them out. We tell them that going forward Washington will make choices for them—about which fees are permissible and which are not, about what aesthetic choices are viable and which are not, with complete disregard for the fact that these infrastructure decisions do not work the same in New York, New York and New York, Iowa.  So it comes down to this: three unelected officials on this dais are telling state and local leaders all across the country what they can and cannot do in their own backyards.  This is extraordinary federal overreach...In addition, this decision irresponsibly interferes with existing agreements and ongoing deployment across the country.  There are thousands of cities and towns with agreements for infrastructure deployment—including 5G wireless facilities—that were negotiated in good faith.  So many of them could be torn apart by our actions here.  If we want to encourage investment, upending commitments made in binding contracts is a curious way to go.

This is standard stuff for telecommunications these days.  The FCC releases an order and the side that perceives it has lost, appeals the decision to a court that it believes will be sympathetic to its case.  So far so good.  Here is where the trouble starts for the Commission.  Democrats believe it advised the major mobile providers to file their own appeals the Order to courts around the country, automatically triggering the lottery process which kicks in when appeals are filed in multiple courts.  And it worked!  The lottery was won by the Tenth Circuit Court in Denver, somewhat friendlier to the FCC.  However, a few days ago, that Court moved the case back to the Ninth Circuit since it previously heard similar cases and was better suited to adjudicate the current one. 

Regardless of the outcome, Democrats are not happy with the way the process unfolded.  Rep. Anna Eshoo, D-CA, introduced a bill that would overturn the FCC’s decision, known as the “Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019.”   This is fine.  That is the way Congress is supposed to work.  However, what is a waste of time is the letter sent by the Energy and Commerce Committee to the FCC, attempting to learn if it had worked with mobile providers to trigger the court lottery process.  In the letter the Committee states that it would be “inappropriate for the FCC to leverage its power as a regulator to influence regulated companies to further its agenda in seeking a more friendly court.”  The letter lists a series of questions the Commission must respond to, to enable Congress to get a complete picture of any interactions the Commission had with mobile providers on this issue.

This request is laughable for several reasons.  First, government agencies such as the FCC work with the companies they regulate all the time including suggesting to them which actions the agency would be favorably disposed to and vice versa.  Second, there is almost never any record of such suggestions.  They are not written and usually occur at meetings when another subject is discussed.  Third, in this case, the mobile providers did not need the FCC to tell them that the Ninth Circuit Court is likely to be hostile to them.  Filing additional appeals is legal and common in telecommunications (and other industries) since each court has its own reputation.

Moreover, the same Democrats that decry the Commission’s actions here cheered when President Obama ordered the FCC (supposedly an independent agency) to classify broadband Internet access service as a telecommunications service in the net neutrality docket.  Not too hypocritical!

All politicians are hypocrites of course.  The point here, is there are better ways for Democrats to ensure rapid and equitable 5G networks than by launching wasteful investigations that have almost no chance of success.  In the meantime, the Ninth Circuit did permit the FCC Order to become effective on January 14, 2019.  Its future success, however, is certainly in doubt.