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FCC’s Controversial Wireless Infrastructure Order Placed in Context of Transition From 4G to 5G Networks

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Screenshot from the FCBA webinar

October 20, 2020 — Industry officials and policy-makers who want the Federal Communications Commission to take a more active role in prescribing local rules for wireless facilities said that the rules in place for a 4G world of tall cellular towers don’t make sense in a 5G world.

Speaking at a September 29 event of the Federal Communications Bar Association, these officials contrasted 4G technology, which only requires a few tall cellular towers to deploy widespread access, to 5G technology. The newer technology requires “small cell” transmission facilities, and it requires a lot of them.

Yet, the FCC was tasked with interpreting aged, ambiguous language from the Telecommunications Act of 1996  to create rules governing the rollout of 5G small cells, these panelists said.

“The Commission, in a series of orders, interpreted old standards for the new form of technology,” said John Howes, government affairs counsel at the Wireless Infrastructure Association. Through a series of 2018 decisions, the FCC established rules regulating fees, put in place a moratorium order, formed aesthetic requirements, and more.

In response, countless local governments, pole-owning utilities, and wireless carriers petitioned for review of multiple aspects of the orders that were briefed and argued in the Ninth Circuit Court.

According to the panelists, the main argument made by municipalities protesting the FCC’s orders was that the agency’s standards were inconsistent with the Ninth Circuit’s interpretations of law.

“Municipalities argued that the FCC’s interpretations of Sections 253 and 332 of the 1996 Act, did not line up with what the rulings say local government can do,” said Nancy Werner, general counsel at the National Association of Telecommunications Officers and Advisors, which is critical of the FCC’s wireless deployment order.

On August 12, 2020, a three-judge panel in the City of Portland v. FCC rejected multiple of the challenges to the Federal Communications Commission’s Small Cell, Local Moratoria, and One Touch Make Ready orders.

Many have called the decision an undeniably win for wireless and wireline providers. “The order was fantastic from the point of industry,” said Josh Turner, partner at the Wiley Rein law firm. “It was hugely helpful in setting rules so everyone could understand what can and can’t be done.”

According to Tom Johnson, general counsel at the FCC, the agency also viewed the Court’s decision as a win. “The court gave us a lot of leeway to decipher the earlier language of the 1996 Act,” he said, adding, “the move will also help expedite broadband deployment.”

The battles between the FCC and local government are nowhere near done, as there are currently pending siting reforms throughout the Trump Administration, including regarding Section 6409 of the 2012 Spectrum Act, and other measures dealing with franchising and pole attachment proceedings and siting on federal lands.

5G

CES 2023: Commissioner Starks Highlights Environmental Benefits of 5G Connectivity

Starks also said federal housing support should be linked to the Affordable Connectivity Program.

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Photo of FCC Commissioner Geoffrey Starks (left) and CTA’s J. David Grossman

LAS VEGAS, January 7, 2023 – Commissioner Geoffrey Starks of the Federal Communications Commission spoke at the Consumer Electronics Show Saturday, touting connectivity assistance for individuals who benefit from housing assistance as well as the potential environmental benefits of 5G.

The FCC-administered Affordable Connectivity Program subsidizes monthly internet bills and one-time devices purchases for low-income Americans. Although many groups are eligible – e.g., Medicaid and Supplemental Nutrition Assistance Program enrollees – Starks said his attention is primarily on those who rely on housing support.

“If you are having trouble putting food on your table, you should not have to worry about connectivity as well,” Starks said. “If we are helping you to get housed, we should be able to connect that house,” he added.

Environmental benefits of 5G

In addition to economic benefits, 5G-enabled technologies will offer many environmental benefits, Starks argued. He said the FCC should consider how to “ensure folks do more while using less,” particularly in the spheres of spectral and energy efficiency.

“This is going to take a whole-of-nation (approach),” Starks said. “When you talk to your local folks – mayors – state and other federal partners, making sure that they know smart cities (and) smart grid technology…making sure that we’re all unified on thinking about this is exactly where we need to go to in order to drive down the carbon emissions.”

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CES 2023: 5G Will Drive Safer Transportation

More comprehensive data-sharing is made possible by the reduced latency of 5G, CES hears.

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Photo of Aruna Anand, Durga Malladi, and Derek Peterson (left to right)

LAS VEGAS, January 5, 2023 – Panelists at the Consumer Electronics Show 2023 on Thursday touted the potential for 5G to make transportation safer by enabling information sharing between vehicles and with infrastructure.

5G is expected to expand connectivity by attaching small cell connectivity equipment on various city infrastructure, including traffic lights and bus shelters. 

More comprehensive data-sharing is made possible by the reduced latency of 5G, said Aruna Anand, president and CEO of Continental Automotive Systems Inc., referring to connectivity communications times. Anand argued that making relevant information available to multiple vehicles is key to improving safety.

“We give more information about the surroundings of the vehicle to the car to enable [it] to make better decisions,” Anand said.

Durga Malladi, senior vice president and general manager for cellular modems and infrastructure at chip maker Qualcomm, described a 5G-enabled “true ubiquitous data space solution” in which vehicles and smart infrastructure – e.g., traffic lights and stop signs – communicate with one another.

Asked for predictions, Malladi forecasted an increased “blend” of communications and artificial intelligence technologies. Anand said 6G is expected to emerge by 2028 and make its way to vehicle technology by 2031.

Both realized and predicted innovations in 5G-enabled technologies have driven calls for expanded spectrum access, from private and public sectors alike. The Federal Communications Commission and the National Telecommunications and Information Administration, the respective overseers of non-federally and federally-used spectrum, in August agreed to an updated memorandum of understanding on spectrum management

Although relatively new, this agreement has already been touted by officials.

The FCC, whose spectrum auction authority Congress extended in December, made several moves last year to expand spectrum access.

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FCC Permit ‘Shot Clocks’ Provides ‘Predictability’ to Wireless Infrastructure Builds: T-Mobile

Shot clocks are important to industry players, argued T-Mobile’s Tim Halinski.

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Photo of Nancy Werner, partner at Bradley Werner, LLC.

WASHINGTON, November 8, 2022 – Panelists on a Federal Communications Bar Association web panel discussed Monday whether benefits of the Federal Communications Commission’s “shot clocks,” which limit how long states and local governments can review wireless infrastructure applications, outweigh the increased pressures they place on state and local governments.

A shot clock’s deadline puts pressure on city officials’ negotiations with providers over the terms of infrastructure projects, said Nancy Werner, partner at Bradley Werner, LLC, a telecommunications legal and consulting firm. They also “put a lot of pressure on local governments…to make sure (they) have a reason to deny” a provider’s application if an agreement cannot be readily reached, Werner added.

Tim Halinski, corporate counsel for T-Mobile, argued Monday that shot clocks are important to industry players, although he acknowledged the validity of Werner’s concerns. T-Mobile and other providers benefit from expeditious permitting processes, as they look to accelerate the build out of 5G wireless technology.

“There’s no one size fits all,” Halinski said, “But it’s at least the starting point and provides that predictability in deployment that we need.”

The comments come as the FCC fields comments on new standards that would streamline the division of costs between third party attachers and pole owners. Critics say the financial and time delay burden in getting access to these poles have slowed and will slow the expansion of broadband in the country.

In 2018, the FCC instituted shortened shot clocks for small wireless infrastructure projects: “60 days for review of an application for collocation…using a preexisting structure and 90 days for review of an application for attachment…using a new structure.” The commission said the new, limited timeframes would facilitate the deployment of wireless infrastructure.

The FCC’s revised shot clocks for small wireless deployments was but one portion of the agency’s so-called “Small Cell Order” of 2018, which aimed to promote the expansion of 5G. To accomplish this goal, however, the order sought to eliminate regulatory roadblocks by limiting state and local governments’ authorities over wireless infrastructure permitting and their own rights of way. This tactic drew criticisms from many experts and local officials.

Nonetheless, in August 2020, the United States Ninth Circuit Court of Appeals largely upheld the order in City of Portland v. United States.

“(The Ninth Circuit’s) decision is a massive victory for U.S. leadership in 5G, our nation’s economy and American consumers,” said then–FCC Chairman Ajit Pai shortly after the ruling. “The court rightly affirmed the FCC’s efforts to ensure that infrastructure deployment critical to 5G…is not impeded by exorbitant fees imposed by state and local governments.”

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