EDITORS’ NOTE: Today’s article is another in a series of pieces on panels and presentations given at that the AGL SoCal Summit, Jan. 24, in Newport Beach, California.
Municipal governments and wireless communications businesses must deal with one another. Local governments have something the wireless businesses want: access to locations in which to place wireless communications facilities, such as small cells. Wireless businesses have something local governments want: modern communications services that residents and business owners want to use.
The two sides bring distinctly different incentive structures to the table and different operating procedures, according to Phillip R. Marchesiello, a partner with Wilkinson Barker Knauer, a law firm with 65 attorneys and offices in Washington, D.C., and Denver. Speaking at the AGL SoCal Summit in Newport Beach, California, on Jan. 24, Marchesiello said that he has no doubt that the two sides eventually will reach a consensus about small cells. However, he said that several factors make reaching that consensus especially challenging. And he said the stakes are high.
In October 2019, White House issued a presidential memorandum on developing a sustainable spectrum strategy for America’s future, which said, “It is imperative that America be the first in fifth-generation wireless technologies — wireless technologies capable of meeting the high-capacity, low-latency and high-speed requirements that can unleash innovation broadly across diverse sectors of the economy and the public sector.”
Marchesiello said that the variability of the United States to achieve this objective and to maintain global leadership with respect to 5G rests, at least in part, on the success of the wireless industry and the thousands of individual municipalities in effectively cooperating with respect to site management and small cell deployment.
“Any procedural or substantive friction between cities and industry needs to be resolved fast,” Marchesiello said. “Many small cells will need to be deployed quickly. This process has already started, and it’s going to rapidly accelerate. It’s been estimated that more than 300,000 new small cells will need to be deployed in the next few years and more than 800,000 by 2026. By contrast in 2017, 13,000 were deployed. For 2018, one estimate is 86,000. These are guesses. It is difficult to say whether these numbers are accurate or possibly significantly low.”
All of this new wireless infrastructure deployment needs to occur despite the fact that the regulatory landscape is rapidly and somewhat unpredictably shifting, Marchesiello said. He likened the regulatory landscape to quicksand.
“Over the last few years, the FCC has made a priority of adopting streamlined regulations for wireline and wireless rights of way for access and pole attachments,” Marchesiello said. “Many of these were aimed at facilitating small cell deployment.”
Following up on initial actions in 2009 and 2014, Marchesiello said, the FCC, beginning in late 2016, has issued almost a dozen notices of proposed rulemaking, public notices, notices of inquiry and, most importantly, orders — substantive orders. He said that the most recent orders in 2018 prohibited cities from adopting moratoria on small cell deployments, required cost-based fees, established some safe harbors for fees, imposed shot clocks on process and applications, and placed limitations on municipally imposed aesthetic requirements.
Although the requirements Marchesiello listed went into effect the week before the summit, he said they were uniformly appealed primarily by the cities. “Those appeals have recently been consolidated in the U.S. Court of Appeals for the Ninth Circuit,” he said. “This creates a great deal of uncertainty, in part because the Ninth Circuit’s approach to the relevant Communications Act statutes has been quite different than the FCC’s approach and much more aligned with the cities.”
In addition to the FCC’s action, Marchesiello said, 21 states have adopted legislation to facilitate small cells. He said these new laws set deadlines for acting on permit applications, cap fees, streamline zoning and regulate when cities may deny permits, among other things. He said that additional states are likely to take similar steps.
“In combination, these factors pose a real challenge to the cities and to the wireless industry, namely rapidly accelerating deployments at a scale that we haven’t seen to date in the context of a continually shifting federal and state regulatory landscape — quicksand under your feet — and where the stakes are no less important than the United States’ global leadership position in the next generation of wireless technology,” Marchesiello said.