Adelstein Expects FCC to Approve Aggressive Siting Rules This Year

FCC Chairman Ajit Pai and his staff “have made this a clear top priority,” said Adelstein, a former FCC commissioner. “They’ve shown no sign of abating on that,” he said Tuesday. That is a “very fast time table” reflecting the item's importance to the FCC, he said. “We had infrastructure month a while ago, and it looks as if it’s really infrastructure year." Adelstein also serves on the Broadband Deployment Advisory Committee, scheduled to meet Thursday. He noted that part of BDAC’s work, including model state and municipal codes and its focus on federal siting issues, is “not necessarily germane” to infrastructure rulemakings. BDAC likely will make recommendations relevant to the proceedings in October or November, he said.

One big industry ask is that the FCC find an application is “deemed granted” if a state or local agency responsible for land-use decisions fails to act on it by a shot clock deadline. Observers question whether the FCC will go that far because of questions from Republican Commissioner Mike O’Rielly (see 1706020053).

Adelstein noted that the 4th U.S. Circuit Court of Appeals in 2015 found the commission within its authority to interpret legal terms designed to streamline deployment of wireless broadband (see 1512180045). Industry “won” on that point, Adelstein said. “We have some good case law,” he said. “We think the FCC is going to use all if its authority … whatever authority it has to facilitate siting.” Deemed granted is “aggressive,” but the FCC is trying to be aggressive here, he said. “It forces action,” he said. “That’s what folks are looking for here.” Local governments retain ultimate authority to make decisions, but deemed granted forces them to act, Adelstein said.

Industry and the FCC face considerable pushback on any move to speed up siting, based on the initial and reply comments filed (see 1707170047). The U.S. Conference of Mayors said mayors want broadband deployment but play an important role overseeing local rights of way. “At the end of your proceedings, these responsibilities and duties will remain and, as such, must be fully respected,” the group said in reply comments in docket 17-79.

NARUC opposes “any preemption that supplants State regulation of intrastate telecommunications with FCC mandates.” Various NARUC resolutions “make clear that the FCC should be careful to respect the clear limits on its authority imposed by the plain text of the federal telecommunications law,” the group commented. New York City said it gets the importance of broadband and will work cooperatively with the FCC and industry. But rules that “impose new, uniform rules on local governments who face a wide variety of conditions will only make that effort more difficult, less creative and more contentious,” the city replied.

The Competitive Carriers Association and other industry commenters said the FCC has clear authority to impose rules. “Improved siting rules will precipitate the expansion of next-generation broadband networks, and generate progress in other important Commission rulemakings,” CCA commented. “Adopting a deemed granted remedy, along with providing clarity regarding shot clock administration, will create needed structure and predictability throughout the siting process, encouraging deployment.”