The FCC’s press release on the item, which was approved at the August FCC open meeting, said moratoria are not allowed by the Communications Act because under Section 253(a), they “prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”
FCC Commissioner Michael O’Rielly was very emphatic in his opposition to moratoria, saying there is a long history of congressional opposition to moratoria on tower and antennas. O’Rielly said that moratoria are merely “mindless delay.”
“Let me make this clear for those local officials who may not have been listening in the past: NO MORATORIUMS; NO MORATORIUMS; ABSOLUTELY NO MORATORIUMS,” O’Rielly said in all capital letters in his written statement. “It is beyond me that we are still having to deal with this outrageous practice after so many years, especially given how important broadband can be to the very citizens residing in these areas.”The lone Democrat on the Commission, Jessica Rosenworcel took issue with the declaratory ruling, saying that it lacked “the legal analysis.” She questioned the wisdom of ignoring the ability of local officials to set their own rules, such as the moratorium that is currently in place on laying fiber in coastal South Carolina during hurricane season.
“Going forward, three unelected officials sitting here today preempt these local policies because they believe Washington knows better,” Rosenworcel said. “We need to find a modern way to balance the needs for national deployment policies with local realities so that across the board government authorities support what we need everywhere—digital age infrastructure.”
O’Rielly said he realized the declaratory ruling was controversial and would probably be tested in court, but he welcomed the challenge to the FCC’s authority in this area. “Every ounce of Congressional authority provided to the Commission must be used as a counterforce against moratoriums,” he said.
Also during his statement, O’Rielly seemed to take a shot at former BDAC member San Jose Mayor Sam Liccardo, who created a $24 million digital inclusion fund as part of public/private relationships with carriers that want to deploy small cells.
“And, the record is replete with examples of such out-of-bound practices, such as digital inclusion funds, that unnecessarily create political slush funds and raise the cost of service for consumers,” O’Rielly said.
Moratoria Previously in FCC Cross Hairs
FCC’s dislike of moratoria is not new. Back in 2014, at the Wireless Infrastructure Show, then-Commssioner Ajit Pai outlined his plan for streamlining the regulatory treatment of DAS and small cells, curbing local moratoria and modifying the shot-clock rules.
Pai proposed to clarify that local moratoria on the approval of new wireless infrastructure violate section 332(c)(7) of the Communications Act, which states that applications should be processed within a reasonable period of time.
“And now some cities are trying to evade those limits by adopting moratoriums on the approval of new wireless infrastructure,” he said.
Actually, it wasn’t the first time O’Rielly has blasted the use of moratoria to impede the rollout of small cells. He pointed to moratoria by Florida municipalities during a meeting of the Broadband Deployment Advisory Committee (BDAC), last November, in Washington, DC.
“The barriers being imposed are not caused by a failure to collaborate, but a failure to heed to current law and a resistance to allow citizens access to modern communications unless certain localities impose their will or extract bounties from providers,” O’Rielly said.
O’Rielly said problem of local governments setting up regulatory environments that are hostile to small cells is getting worse, “despite the existence of [BDAC].”
J. Sharpe Smith
J. Sharpe Smith joined AGL in 2007 as contributing editor to the magazine and as editor of eDigest email newsletter. He has 29 years of experience writing about industrial communications, paging, cellular, small cells, DAS and towers. Previously, he worked for the Enterprise Wireless Alliance as editor of the Enterprise Wireless Magazine. Before that, he edited the Wireless Journal for CTIA and he began his wireless journalism career with Phillips Publishing, now Access Intelligence.
In a highly controversial proceeding, the FCC voted 3-2 today to reverse the Title II regulation of broadband internet access service, known as Net Neutrality, implemented in 2015. Additionally, the FCC instituted transparency requirements that will protect consumers by empowering the Federal Trade Commission to act when broadband providers engage in anticompetitive and deceptive acts.
“The framework adopted by the Commission today will protect consumers at far less cost to investment than the prior rigid and wide-ranging utility rules,” FCC Chairman Ajit Pai said. “Restoring a favorable climate for network investment is key to closing the digital divide, spurring competition and innovation that benefits consumers.”
Adding to the tension surrounding the FCC vote, federal protective service interrupted the meeting and cleared the room in the middle of Chairman Pai’s statement. The meeting came back to order minutes later. It was later divulged that the break was the result of a bomb scare.
Comm. Mignon Clyburn, who dissented, characterized the FCC’s action as the “destroying Internet Freedom” order. In her “eulogy,” she described the Net Neutrality rule as a “carefully crafted” attempt to strike a balance between protecting consumers and enabling investment in the internet. She noted the high probability that the issue will be decided in the courts.
“What saddens me the most is that the agency that is supposed to protect you is actually abandoning you,” Clyburn said. “What I am pleased to say is that the fight to save Net Neutrality does not end today. The agency does not have the final word. Thank goodness for that.”
Comm. Jessica Rosenworcel had a finger on the pulse of why the FCC received 22 million comments in the Net Neutrality proceeding, not to mention the countless protests that occurred.
“The future of the internet is the future of everything,” she wrote in a dissenting statement. “That is because there is nothing in our commercial, social and civic lives that has been untouched by its influence or unmoved by its power.”
The Restoring Internet Freedom order eliminates the net neutrality rules, which have both survived challenges in the courts and now enjoy popularity among the American people, according to Rosenworcel.
“Today we wipe away this work, destroy this progress and burn down time-tested values that have made our internet economy the envy of the world,” she wrote.
New York AG to Sue Government over Internet Freedom Order
The next stage of the drama is already set. Among others, New York Attorney General Eric T. Schneiderman plans to lead a multistate lawsuit to stop the rollback of net neutrality.
“The FCC’s vote to rip apart net neutrality is a blow to New York consumers, and to everyone who cares about a free and open internet,” he said in a press release. “The FCC just gave Big Telecom an early Christmas present, by giving internet service providers yet another way to put corporate profits over consumers. Today’s rollback will give ISPs new ways to control what we see, what we do, and what we say online. That’s a threat to the free exchange of ideas that’s made the Internet a valuable asset in our democratic process.”
June 15, 2017 —
Previously, she was the Senior Communications Counsel for the U.S. Senate Committee on Commerce, Science, and Transportation, working for Senator Jay Rockefeller IV from 2009 to 2011, and Senator Daniel K. Inouye from 2007 to 2008. Before that, she served at the Commission in a variety of legal positions from 1999 to 2007.
Rosenworcel has been the subject of a zig zag by the Trump Administration. She was re-nominated originally by President Obama toward the end of his term, but President Trump withdrew the nomination in March. Now, apparently, she is back on track.
FCC Chairman Ajit Pai congratulated Rosenworcel on her nomination to return to the Commission. “She has a distinguished record of public service, including the four-and-a-half years we worked together at this agency, and I look forward to working with her once again to advance the public interest,” he said in a prepared statement.
Rosenworcel is a fellow supporter of net neutrality with Comm. Mignon Clyburn, who called her a “tireless advocate for bridging the homework gap,” a “leader in the effort” to modernize 9-1-1 call centers, and a “champion” for increasing access to unlicensed spectrum.
After three years of discussion, it looks like the FCC is seriously thinking about expanding spectrum that could be used for Wi-Fi into the 5.850-5.925 GHz (U-NII-4) band, which is allocated for Dedicated Short Range Communications (DSRC) operations.
FCC Commissioners Ajit Pai, Michael O’Rielly and Jessica Rosenworcel enthusiastically embraced the move. Comm. Pai said he has been calling for opening up the 5 GHz band for more Wi-Fi usage since 2012. He also noted the support on Capitol Hill from Sens John Thune, Bill Nelson, Cory Booker, Claire McCaskill, Gary Peters, and Marco Rubio, as well Reps Bob Latta and Anna Eshoo.
In 1999 the FCC allocated 75 MHz of spectrum in the 5.9 GHz band for DSRC use by Intelligent Transportations Systems (ITS) vehicle safety and mobility applications, which is adjacent to unlicensed wireless technology allocations made in 1997 and 2003. The use of the band for vehicle safety, however, has been supplanted by other technologies in other bands.
“DSRC is intended to enable wireless communications to promote safety for both vehicle-to-vehicle and vehicle-to-infrastructure purposes,” wrote Comm. Ajit Pai. “But at the time of the allocation, we did not have the commercial applications or new radar technologies that can play a key role in improving highway safety and thus saving lives.”
In a joint statement, FCC Commissioners Michael O’Rielly and Jessica Rosenworcel said that the DSRC spectrum is the best option for expanding capacity for unlicensed Wi-Fi users.
“Combining the airwaves in this band with those already available for unlicensed use nearby could mean increased capacity, reduced congestion, and higher speeds,” the Commissioners wrote.
An important component of the proceeding will be proving that Wi-Fi use of the spectrum will not cause interference to incumbent licensees, DSRC systems in particular. It establishes procedures for the submission of prototypes for testing and a test plan that will be led by the Commission, in consultation with the Department of Transportation and National Telecommunications and Information Administration. Qualcomm and Cisco are expected to showcase 5.9 GHz spectrum sharing technologies.
“Technological advances have reduced the potential for interference and enabled spectrum sharing, allowing us to explore unlicensed opportunities in this band without causing harmful interference to DSRC safety-of-life functions,” according to O’Rielly and Rosenworcel.
The Public Notice established a July 30, 2016 deadline for the submission of testing equipment and testing completed by January 15, 2017.