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The FCC’s Approach to Small Cells Strips Municipalities of Rights, Claim NATOA Panelists

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Photo of small cell by Rohanmkth used with permission

June 29, 2020 — Wireless infrastructure deployment, particularly for small cell or distributed antenna systems, promise smart city innovation abilities. But this rollout is likely to be stymied until resolution of disputes between industry and municipalities.

Local officials are upset that federal intervention – by Congress and by the Federal Communications Commission – is hampering their ability to govern their own rights-of-way.

Panelists of a webinar hosted by the National Association of Telecommunications Officers and Advisors on Monday argued that local governments must take proactive steps to maintain their influence in negotiations with industry over small cell deployment.

Although the FCC would prefer to ignore them, municipalities do have rights concerning the deployment of wireless infrastructure facilities. In particular, the Telecommunications Act of 1996, which preserves local zoning authority over the “placement, construction, and modification of wireless facilities.”

“While current policy gives local governments rights, there are limitations to these rights,” said Michael Roberts, an attorney with the Cohen Law Group.

Localities feel they are being squeezed by federal preemption from Washington

Localities rights were severely restricted in 2018, when the Federal Communications Commission adopted a ruling defining small cells and placing a number of restrictions on how state and local governments can manage the deployment of small cells.

The 2018 order built upon prior rules, and which also raised serious concerns from local governments.

In particular, the most recent order has been critiqued by municipalities as a blatant effort by the agency to strengthen the hand of carriers in negotiations with local governments over small cell deployment.

It was further labeled an attempt to limit the ability of local government to negotiate in the public interest around small cells.

Many local governments and national municipal associations, including NATOA, responded by appealing the order, denouncing its preemption of local power.

The FCC justified the order by stating that it was intended to remove regulatory hurdles impeding the implementation of 5G systems.

Limitations established by the order constrain municipalities’ vis-à-vis wireless infrastructure companies

Among a number of things, the order establishes a working definition for small wireless facilities, or small cells.

Robust DAS and small cell networks require at least one small cell to be deployed every few meters, and the order preempts local governments from establishing certain aesthetic requirements.

It rules all aesthetic requirements for small wireless facilities must be reasonable, no more burdensome than those applied to other types of infrastructure deployments and published in advance.

Roberts advised panelists about the importance of utilizing clear language when writing aesthetic requirements, as providers may be able to use vague language to avoid unclear aesthetic requirements.

The order further defines the size of small cells, stating all antenna equipment can be no more than a cumulative 28 cubic feet in volume.

“That could be up to the size of a refrigerator,” Roberts warned. While the cells are termed “small,” that often is not the case.

The wireless industry often refers to small cells as the size of “pizza box,” but Roberts’ point about 28 cubic feet shows that federal rules allow for the size of a refrigerator that presumably could hold many, many pizza boxes.

The order also puts limitations on the fees that local governments can charge, which Roberts regarded as the biggest impact that it will have on local governments.

The order finds that fees localities charge operators must, again, be “reasonable”.

“Local governments may exceed these approximate cost ceilings by conducting a defensible cost study,” said Tripp May, shareholder at Telecom Law Firm.

Further, the agency’s order creates new shot clocks to control the length of the review process for applications for small wireless facilities.

Shot clocks govern how quickly localities have to review industry applications for installing small cell sites, as all approvals, permits, and agreements must be completed within shot clock time frames.

The industry is lobbying for more legislation that would allow them to immediately begin small cell construction if a locality does not review their application before the shot clock expires, panelists said.

Takeaway messages for municipalities and for the wireless infrastructure industry

As to the FCC’s order, however, petitions filed against it allege that it exceeded the agency’s authority, arguing it largely preempts local governments from regulating their small cell equipment.

Oral arguments in opposition of the order were held on February 20, but the court’s decision has yet to be announced.

“There is a great deal of control at the local level,” Roberts said. “Impose regulations and understand the rights and abilities of your community.”

Contributing Reporter Jericho Casper graduated from the University of Virginia studying media policy. She grew up in Newport News in an area heavily impacted by the digital divide and has a passion for universal access and a vendetta against anyone who stands in the way of her getting better broadband.

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Funding

Florida, Georgia, Iowa, Minnesota, Missouri and Utah to Receive Nearly $1 Billion in American Rescue Plan Funds

The states will use their funding through the Capital Projects Fund to connect more than 180,000 homes and businesses.

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WASHINGTON, December 1, 2022 – The U.S. Treasury Department on Thursday announced the approval of broadband projects in an additional six states under the American Rescue Plan’s Capital Projects Fund Florida, Georgia, Iowa, Minnesota, Missouri and Utah.

Together, these states will use their funding to connect more than 180,000 homes and businesses to affordable, high-speed internet.

The Capital Projects Fund provides $10 billion to states, territories, freely associated states, and Tribal governments to fund critical capital projects that enable work, education, and health monitoring in response to the public health emergency. In addition to the $10 billion provided by the CPF, many governments are using a portion of their State and Local Fiscal Recovery Funds toward connecting to affordable, reliable high-speed internet.

“The pandemic upended life as we knew it—from work to school to connecting with friends and family—and exposed the stark inequity in access to affordable and reliable high-speed internet in communities across the country in rural, Tribal, and other underrepresented communities,” said Deputy Secretary Wally Adeyemo. “This funding will lay the foundation for the Biden-Harris Administration’s historic investments to increase access to high-speed internet and reduce internet bills for American households and businesses.”

In accordance with Treasury’s guidance, each state’s plan requires service providers to participate in the Federal Communications Commission’s new Affordable Connectivity Program.

The Affordable Connectivity Program helps ensure that households can afford the high-speed internet they need for work, school, healthcare, and more by providing a discount of up to $30 per month (or up to $75 per eligible household on Tribal lands). Experts estimate that nearly 40% of U.S. households are eligible for the program.

The Administration also commitments from 20 leading internet service providers to offer all ACP-eligible households high-speed, high-quality internet plans for no more than $30 per month. As a result, ACP-eligible households can receive internet access at no cost and can check their eligibility for free internet and sign up at GetInternet.gov.

In addition to requiring funding recipients to participate in the Affordable Connectivity Program, Treasury’s guidance requires recipients to consider whether the federally funded networks will be affordable to the target markets in their service areas and encourages recipients to require that a federally funded project offer at least one low-cost option at speeds that are sufficient for a household with multiple users.

The following descriptions summarize the six state plans that Treasury approved today:

  • Florida is approved for $248 million for broadband infrastructure, which the state estimates will connect 48,400 households and businesses – representing approximately 10% of locations still lacking high-speed internet access. Florida’s award will fund Florida’s Broadband Infrastructure Program (BIP), a competitive grant program designed to expand last mile broadband access to homes and businesses in rural areas of the state. Funding from CPF will help Florida continue to prioritize fiber-optic networks and projects proposing affordable service. The BIP is designed to provide internet service with speeds of 100 * 100 Mbps symmetrical to households and businesses upon project completion. Florida submitted plans for the remainder of their CPF funds and these applications are currently under review by Treasury.
  • Georgia is approved to receive $250 million for broadband infrastructure, which the state estimates will connect 70,000 households and businesses – representing 15% of locations still lacking high-speed internet access. Georgia’s award will fund the Georgia Capital Projects Fund grant program, a competitive grant program that is designed to fund broadband infrastructure projects that provide service to areas identified by the state to currently lack access to reliable broadband that can meet or exceed 25 * 3 Mbps, and that adopt practices that support both efficient broadband expansion and community engagement. The Georgia Capital Projects Fund is designed to provide internet service with speeds of 100* 100 Mbps symmetrical to households and businesses upon project completion. Georgia submitted plans for the remainder of their CPF funds and these applications are currently under review by Treasury.
  • Iowa is approved for $152.2 million for broadband infrastructure, which the state estimates will connect 18,972 households and businesses – representing approximately 16% of locations still lacking high-speed internet access. Iowa’s award will fund the Empower Rural Iowa Broadband Program, a competitive grant program designed to address inequities in access to broadband throughout the state of Iowa. Using a three-step process, the program combines mapping data, input from communities, and applications from service providers. Funding from CPF will help Iowa bring broadband service to areas identified having a critical need for broadband. Empower Rural Iowa Broadband Program is designed to provide internet service with speeds of 100 * 100 Mbps symmetrical to households and businesses upon project completion. The plan submitted to Treasury and being approved today represents 100% of the state’s total allocation under the CPF program.
  • Minnesota is approved for $44 million for broadband infrastructure. Minnesota’s award will fund two additional broadband infrastructure programs: Minnesota’s Line Extension Program, a competitive grant program designed to address the needs of individuals who are located near infrastructure for high-quality broadband service but where the cost of the last mile connection is a barrier; and the Low-Density Pilot Program, a competitive grant program that provides financial resources for new and existing providers to invest in building broadband infrastructure in low-density areas of the state that currently lack high-speed internet. Funding from CPF will help Minnesota continue its efforts to provide reliable internet access to predominately rural locations previously facing cost barriers. Both programs are designed to provide internet service with speeds of 100 * 100 Mbps symmetrical to households and businesses upon project completion. Minnesota submitted plans for the remainder of their CPF funds and these applications are currently under review by Treasury.
  • Missouri is approved for $196.7 million for broadband infrastructure, which the state estimates will connect 37,979 households and businesses – representing approximately 8% of locations still lacking high-speed internet access. Missouri’s award will fund the Missouri Broadband Infrastructure Grant Program, a competitive grant program designed to fund broadband infrastructure projects in areas that currently lack access to high-speed, reliable broadband. Funding from CPF will help Missouri bring service to areas where broadband infrastructure projects would not be feasible without assistance. The Missouri Broadband Infrastructure Grant Program is designed to provide internet service with speeds of 100 * 100 Mbps symmetrical to households and businesses upon project completion. The plan submitted to Treasury and being approved today represents 100% of the state’s total allocation under the CPF program.
  • Utah is approved for $10 million for broadband infrastructure, which the state estimates will connect 3,080 households and businesses – representing approximately 5% of locations still lacking high-speed internet access. Utah’s award will fund the Broadband Infrastructure Gap Networks Grant Program (Gap Networks Grant Program), a competitive grant program designed to address gaps in broadband infrastructure where reliable broadband service is currently unavailable. Funding from CPF will help Utah continue its efforts to bridge the state’s remaining digital divide. The Gap Networks Grant Program is designed to provide internet service with speeds of 100 * 100 Mbps symmetrical to households and businesses upon project completion. Utah submitted plans for the remainder of their CPF funds and these plans are currently under review by Treasury.
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Broadband Mapping & Data

States Face Roadblocks in Challenge Processes, FCC Tries to Facilitate

The BEAD timeline looms large for many who worry that two months is insufficient time to correct the map.

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Photo of Kirk Burgee, chief of staff for the FCC's Wireline Competition Bureau

WASHINGTON, November 30, 2022 – As state broadband offices scramble to submit challenges to the national broadband map, the Federal Communications Commission is working to provide much-needed resources to help stakeholders through the often-opaque challenge processes.

The FCC’s new broadband map, released in November, provides location-level data of broadband availability nationwide. The map is comprised primarily of two datasets: a list of all broadband serviceable locations – the “fabric” – and provider-submitted availability data. The accuracy of both can be challenged by the public through designated processes.

The FCC has endeavored to create a consumer-friendly challenge-process, said Kirk Burgee, chief of staff for the Wireline Competition Bureau. “We do try to make the process as flexible and accessible as it can be consistent with getting effective challenges and resolving them correctly,” he explained.

Burgee spoke at an FCC webinar held Wednesday to demystify the fixed-availability bulk-challenge process.

The FCC’s availability data will largely determine the distribution of the $42.45 billion Broadband Equity, Access, and Deployment program among the states. The National Telecommunications and Information Administration, the subdivision of the Department of Commerce which administers the BEAD funds, has advised the public to submit challenges by January 13, 2022, to ensure they are considered for BEAD grants – scheduled to be announced in June.

The immediate stakes of accurate mapping

If the FCC’s data is inaccurate when the NTIA calculates the allocations, some states could be shorted on badly needed funding. Some industry players say the map is concerningly inaccurate, and others say the FCC’s challenge processes may prove prohibitively complex.

Georgia has yet to submit fabric challenges, although it intends to, wrote Joshua Hildebrandt, the state’s director of broadband initiatives, in correspondence with Broadband Breakfast.

“So far, we have encountered a number of hurdles that have made a quick challenge submission difficult to do,” Hildebrandt explained. “Georgia is fortunate to have a considerable amount of data, which helped us create one of the nation’s first public statewide address-level broadband service maps.

“However, even with all of this applicable data in-house,” he added, “The FCC’s process for challenging fabric locations on a one-by-one basis still requires substantial effort and time.”

“The fabric is an enormous challenge, but we are very disappointed in the quality of the fabric and, more importantly, the insistence on using it and moving forward,” David Lukens, Connecticut’s broadband-mapping coordinator, told Broadband Breakfast.

“The FCC’s burdensome challenge process incentivizes…challenges focused only on potential BEAD project area,” he added.

Several state broadband officials told Broadband Breakfast that they have, by necessity, thus far submitted fabric challenges primarily for unserved areas, leaving the FCC’s data for numerous locations in better-served areas uncorrected. Some say, however, that they will submit additional challenges going forward.

The challenge process may work, but some say time is running short for BEAD

Spokespeople for the FCC and CostQuest have routinely acknowledged the errors in the map’s first draft and urged stakeholders to submit challenges to correct them. Some experts, including Scott Wallsten of the Technology Policy Institute, say inaccuracies are inevitable, but the challenge process will largely ameliorate them in time.

The BEAD timeline looms large for many who worry that less than two months – the interval between the map’s November release and January 13 – is insufficient time to correct the map. And like any massive undertaking, smaller entities struggle to keep up.

Kansas’ broadband director, Jade Piros de Carvalho, told Broadband Breakfast her small team lacks the bandwidth to submit a bulk challenge at all. Piros de Carvalho has encouraged her fellow Kansans to submit their own challenge. “Currently the FCC shows KS at about 5 percent unserved. We are more likely closer to 15 percent unserved, and that difference will have a direct negative impact on the dollars we receive,” she wrote Monday.

Maine will take a multi-stakeholder approach that will mobilize communities and regional partners, Andrew Butcher, president of the Maine Connectivity Authority, told Broadband Breakfast. In addition, the state itself plans to submit bulk-availability and fabric challenges by January 13, Butcher said.

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Spectrum

Interference Concerns with FCC Raised Over Wi-Fi in 6 GigaHertz Band

Southern Linc raised concerns about potential interference issues with the agency’s opening the band for unlicensed use.

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Illustration by Jose Ruiz from PC Mag

WASHINGTON, November 30, 2022 – Wireless service provider Southern Linc raised concerns with the Federal Communications Commission on November 9 about potential interference issues with the agency’s opening of the 6 GigaHertz (GHz) band for unlicensed use.

The concerns, laid out in a post-meeting letter to the FCC, explained that the agency’s decision to open up the band traditionally used by services including broadcasting to unlicensed use was based on measurements taken in 2018. Since then, wireless data points have multiplied, rendering these measurements outdated and unreflective of the current Wi-Fi environment, Southern Linc representatives argued.

Southern Linc urged the collection of data on current Wi-Fi operations to successfully develop and implement automated frequency coordination systems. A thoroughly tested automatic frequency control system could provide for effective shared use of the 6 GHz band and reduce harmful interference, the company said.

Earlier this month, the FCC approved the testing of 13 proposed automated frequency coordination database systems from various technology companies to ensure interference issues are limited. During testing, each company will make the automated frequency coordination system available for a specific period for the public to test the system’s functionality.

Southern Linc also recommended a proposal made by trade associations to engage in next-generation Wi-Fi, dubbed “6E” for its capability to use the 6 GHz band. To date, the University of Michigan has a campus-wide Wi-Fi 6E system, the largest currently operating network of unlicensed 6 GHz devices.

In April 2020, the FCC adopted its 6 GHz Order, freeing up 1,200 megahertz of spectrum in the 6 GHz band (from 5.925–7.125 GHz) for unlicensed use, including for Wi-Fi connectivity. The order, supported unanimously by the FCC commissioners, was expected to improve Wi-Fi reliability and speed.

A few months later, in response to a challenge from AT&T, the D.C. Court of Appeals unanimously upheld the FCC order stating that the “petitioners have failed to provide a basis for questioning the commission’s conclusion that the order will protect against a significant risk of harmful interference.”

In December 2021, the National Spectrum Management Association echoed concerns about harmful interference, alleging the FCC decision was made without proper testing.

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