Frequencies, Towers, Poles: WISPA Panel on Regulatory Hurdles for Broadband

LAS VEGAS, October 10, 2023 – Experts dove into common regulatory hurdles for both wireless and fiber broadband builds on Monday at WISPAPALOOZA, the annual conference of small internet providers.

Frequency and approved devices

Devices communicating with radio frequencies regulated by the Federal Communications Commission must undergo an approval process, said Jason Guzzo, CEO of broadband provider Hudson Valley Wireless.

That’s usually handled by manufacturers, but carriers should be aware of equipment produced by companies that violate the Secure Networks Act – namely Huawei and ZTE. These and three other Chinese companies are compliant from a technical perspective, but are deemed national security threats under the act, Guzzo said.

The act allocated $1.9 billion for small providers to replace equipment from Huawei and ZTE, but the FCC and providers have signaled this is almost certain to be deficient by roughly $3 billion. The deadline for the initial round of funding passed on July 15, with efforts to top up the fund currently stymied in Congress.

There is also an upcoming addition to the standard 2.4 and 5 Gigahertz frequency bands open for unlicensed use, said Josh Luthman, president of Imagine Networks. In 2020, the FCC freed up the 6 Ghz band, making over 1,200 Mhz available for devices to connect to the internet, 850 of which can be used outdoors.

But the soon-to-be-deployed devices using that band, Luthman cautioned, will have to use an automatic frequency coordinator, a system that confirms connected devices are not interfering with licensed frequencies.

Towers

For fixed wireless carriers looking to construct new towers, Guzzo said, there are three main considerations: endangered species, Tribal sites, and airports.

The FCC requires tower projects to comply with the National Environmental Policy Act, which involves reporting the environmental impacts of a planned project. That will involve a screening for endangered species with tools from the Fish and Wildlife Service.

“They just want to make sure you’re not kicking the birds out to put the tower systems in there,” Guzzo said.

But the presence of endangered species does not mean a project will be scrapped, he noted. Regulatory agencies, both local and federal, will typically work with providers to make a plan for building a tower without disturbing the habitat.

For projects accepting federal funding, a notification will be sent to Tribal communities in the state, as well as Tribes who moved through the area before settling in their current location, to ensure the project will not disturb culturally significant sites like burials.

“A lot of our deployments are in New York State, and we’ve had projects that are weighed in on by the Shawnee Tribe of Oklahoma,” Guzzo said.

This process can be lengthy and expensive if there are questions about the significance of the project site, he said, sometimes involving a certified archaeologist coming to the site.

Guzzo noted ballasts are an option to avoid disturbing significant land.

As for the Federal Aviation Administration, the agency generally requires towers above 200 feet to be registered and marked with lights and bright paint. Towers close to that might require a surveyor to get exact measurements, Guzzo said.

For towers close to airports, that height threshold can be as low as 50 feet. If a tower is set to lie in the path of descending planes, some additional FAA paperwork will be required to ensure the tower will not pose a hazard.

Poles

For providers who are registered as telecommunications carriers – which some small broadband providers are, by virtue of providing voice or data transmission services – the FCC ensures they can make deals with utility companies to attach equipment to poles and regulates the terms of those deals. Those terms are the subject of some contention, with telecom companies and utilities disagreeing on who should bear the brunt of pole replacement costs.

But some states have their own laws on pole attachments that supersede the FCC’s, noted Rebecca Jacobs Goldman, chair of a cybersecurity practice group at Lerman Senter. Knowing which regulations apply in a project’s jurisdiction is key for successful deployments, she said.

But even for strictly broadband providers, section 253 of the Communications Act of 1934, the same act regulating telecom pole access, can assist in getting equipment deployed, Goldman said. While not applicable to investor-owned utilities, the section prevents state and local governments from putting up significant barriers to broadband deployment.

That can help when negotiating management fees and terms of public property access, Goldman said.

“It’s a great statute to have in your back pocket,” she said.

The FCC announced in September that it is looking to reinstate rules that would classify broadband providers as telecommunications carriers, which would change pole attachment rules and add to the regulations governing broadband providers. The commission will vote on putting the move up for public comment at its open meeting on October 19.

WISPA has urged the FCC to differentiate between small and large broadband providers, arguing its members have too little market share to engage in the anti-competitive practices the rules are meant to curb and are unable to handle the regulatory burden.