FCC Streamlines 5G Deployment Despite State and Local Government Objections

December 10, 2020 | by Andrew Regitsky

FCC Streamlines 5G Deployment Despite State and Local Government Objections

In a microcosm of the four years of the Ajit Pai administration, in a 3-2 split decision, the FCC once again supported telecommunications companies over the objections of local and state governments.  In this case, to facilitate 5G network deployment, the Commission issued a Report and Order (Order) on November 3, 2020 in Docket 19-250, minimizing the state and local government review process for wireless carriers modifying their existing infrastructure in situations that involve excavation and deployment beyond their existing site boundaries.  Specifically, the agency revised its rules

implementing section 6409(a) of the Spectrum Act of 2012, which provides that state and local governments may not deny certain requests to modify existing wireless structures that do not substantially change the physical dimensions of the structures. The revised rules provide that excavating or deploying transmission equipment in an area no more than 30 feet beyond existing site boundaries would not disqualify the modification from section 6409(a) treatment. This change is consistent with the current Nationwide Programmatic Agreement for the Collocation of Wireless Antennas, which provides that excavation or deployment within the same limited area beyond a site boundary generally does not warrant federal historic preservation review of a collocation. The Report and Order also defines site boundaries in a manner that appropriately reflects prior state or local government review. 

The action taken by the Commission today will promote the accelerated deployment of 5G and other advanced wireless services by facilitating the collocation of antennas and associated equipment on existing infrastructure while preserving the ability of state and local governments to manage and protect local land-use interest.  (FCC Public Notice, released October 27, 2020).

While this decision is consistent with the pro-business anti-regulatory view of the FCC’s three Republicans, the two Commission Democrats were equally consistent in their dissents.  For example, Commissioner Geoffrey Starks expressed concern about public safety if wireless companies can expand their locations without government review.

As the country continues to grapple with COVID-19, state and local governments are working overtime to respond to the crisis and continue their daily operations. This decision will add yet another problem to their plates: expansions that may create public safety hazards in the communities they are already working tirelessly to protect. While streamlining rules and flexibility can be helpful and sometimes necessary, we must not do so at the expense of state and local governments that are already overburdened. (Docket 19-250, Dissent of Commissioner Geoffrey Starks).

In her dissent, Commissioner and potential future FCC Chairman Jessica Rosenworcel expressed concern that the FCC in it zest to help companies continues to usurp state and local authorities.

[W]hen we proceed like this, we create genuinely unhelpful friction between state and local interests who have filed en masse in this proceeding to protest how this agency is diminishing their authority. By doing so, we reduce the opportunity to foster the kind of partnerships between providers and state and local authorities that can help build smart cities—where connectivity will help improve the quality of life. That can mean everything from adaptive traffic signals to increased energy efficiency to improved waste management to more data-driven problem solving in real time. But we won’t get there anytime soon if this agency keeps reading the statute in a way that leaves state and local authorities aggrieved that they lack a say in what is built in their own backyards. (Docket 19-250, Dissent of Commissioner Jessica Rosenworcel).

With the Democrats poised to take control of the FCC in 2021 when a third Democrat is appointed to the FCC, issues like this would likely be decided differently.  When the Democrats take charge of the agency, expect more deference given to local governments and more restrictions and barriers put on (especially) large carriers.  The most contentious battles will come over Internet regulation and broadband deployment.  Democrats will seek to impose more regulations on ISPs and will also demand more accurate and faster broadband deployment.  The gravy days for the large broadband companies and ISPs are about to come to a sudden end.