Comments Complete on Further Infrastructure Revisions; Quick Action Unlikely

Commissioner Brendan Carr, the FCC point person on wireless infrastructure, hasn’t committed to anything. The agency has other big, pressing wireless issues before it, led by the C band. Replies were posted Thursday in docket 19-250. The commission didn't comment.

Given the pressure on Chairman Ajit Pai to deliver on mid-band spectrum, the C band and 5.9 GHz proceedings “will dominate 2020, no doubt to the detriment of other priorities,” said a former spectrum official. The C-band proceeding will take “literally the entire year,” while 5.9 GHz will likely be resolved no later than June and with support of the full commission, the official predicted.

“The record does not warrant the FCC taking any immediate action on the proposals. To the extent there are delays in constructing modifications subject to the Section 6409(a) rules, the record shows the actions (or inaction) of applicants, not local governments, is a significant issue,” emailed NATOA General Counsel Nancy Werner, regarding the Spectrum Act. “WIA raised in the last [Broadband Deployment Advisory Committee] meeting the public safety implications of these modifications, and we support the idea of bringing these issues to a balanced working group of the BDAC where we can have a productive conversation about what issues, if any, could benefit from clarifications or rule changes.”

"The FCC has a lot on its plate right now,” but that has been true since Pai became chairman, said Tom Struble, tech policy manager at the R Street Institute. Timing's tough to predict, he said: “We filed reply comments … supporting the petitions and encouraging the FCC to act on them as soon as possible. Some of that could be done pretty quickly, via declaratory ruling, but other things would require a separate rulemaking that would obviously take a while longer.”

CTA joined more traditional advocates of infrastructure change. Technology depends on deployment of 5G infrastructure, the group said. “Further technological breakthroughs in artificial intelligence, augmented and virtual reality, IoT, robotics, blockchain, and edge computing will all either rely on, or be enhanced by, 5G connectivity,” CTA said: “5G connectivity will offer enhanced broadband capabilities and data-intensive applications that can be utilized by new form factor devices and connected vehicles, low latency applications such as cloud robotics and edge computing, and massive IoT services in smart cities, agriculture, and manufacturing.”

Local Concerns

Many filings from localities and allies opposed FCC action.

NATOA, the U.S. Conference of Mayors and National Association of Counties said industry provides no evidence the FCC needs to again address infrastructure rules. “Most commenters supporting the Petitions cite to the Petitions themselves as justifying the need for the proposed actions, offering little or no additional specific examples of alleged bad acts necessitating changes to the Rules,” the groups said: “This lack of specificity warrants dismissal of the Petitions without further action.”

San Francisco said local governments rightly object. “Nothing in the [Spectrum Act] suggests that Congress intended the Commission to interfere with local government authority over public health, safety, and welfare in this manner,” the city/county argued: “This Commission has noted that Congress did not intend to prohibit the ability of localities to ‘enforce and condition approval on compliance with generally applicable building, structural, electrical, and safety codes and with other laws codifying objective standards reasonably related to health and safety.’”

“Almost without exception, commenters supporting the Petitions’ requests fail to offer specific evidence, additional information, or supportive material to substantiate the conclusory assertions of the Petitions,” said the National League of Cities and cities and counties large and small. They included Los Angeles, Boston and Baltimore. No data is offered, “only unsubstantiated claims against largely unnamed localities and utilities,” the filing said.

“Changes to the shot clock rules would allow applicants to determine when and how they submit requests for approval, even if the submittal contravenes established local processes, and inject ambiguity as to whether any incomplete notices, denials or even approvals were effective,” commented California cities, led by San Diego. “Changes to the substantial-change criteria would dramatically limit concealment elements protected under existing Commission rules and abrogate (or eliminate) commonsense limitations.”

Telecom's Stance

Industry isn't backing down.

“All five commissioners have recognized the challenges to deploying next-generation networks, which have unprecedented benefits to the economy,” said WIA Government Affairs Counsel John Howes. “Most local governments are complying with the rules, but some are misinterpreting the rules, which has hindered 5G deployment. WIA has had productive conversations with numerous different parties, including local governments, involved in this proceeding. WIA is committed to finding solutions that can work toward everyone across the U.S. benefitting from mobile connectivity.”

WIA pressed for action, saying Section 6409(a) “is a strong statement from Congress that the speedy deployment of wireless infrastructure and the provision of broadband service to underserved areas are national imperatives.” Action is needed to ensure the protections in the act are “not rendered meaningless.” The record is clear, WIA said. “Clarifying and modifying the rules as requested by WIA and CTIA" also "could ultimately reduce costs and ease burdens for all stakeholders,” WIA said.

CTIA said disagreements over how the rules should be enforced are “causing uncertainty, disputes, and delays that are impeding wireless and 5G deployment at a critical time." And “contrary to opponents’ incorrect claims that CTIA and WIA are requesting changes to the rules via their petitions for declaratory ruling, these petitions in fact ask only for clarification of existing rules,” CTIA said.

America’s Communications Association urged the FCC to grant CTIA's request. ACA wants to "clarify that utilities may not seek to impose terms on attachers that conflict with -- and thereby undermine -- the commission's rules and that utilities that attempt to impose such terms are not acting in good faith."

ACA took aim at utilities over pole attachments. Power companies said no change is needed there, either. "No amount of pole attachment regulation will ever be enough for the attaching entities," wrote American Electric Power, Duke, Entergy, Southern Co. and others.