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Wheeler Rallies MUNIs to Support Streamlined Broadband Deployment

By J. Sharpe Smith —

Oct. 2, 2014 — Stepping into the lion’s den of a national gathering of municipal officials, FCC Chairman Thomas Wheeler made an impassioned call for local governments to join the FCC in its efforts to facilitate the deployment of broadband wireless and wireline networks.

“I understand the very real and very strong not-in-my-backyard sentiments,” Wheeler said. “Everyone wants cell phone service but no one wants cell phone antennas in their neighborhood. Everyone wants access to state-of-the-art transmission service, but no one wants the neighborhood streets dug up. It reminds me of another folk song: ‘Everyone wants to go to heaven, but nobody wants to die.’”

In a keynote speech before the National Association of Telecommunications Officers and Advisors Annual Conference in St. Paul, Minnesota, Oct. 1, the FCC chairman tied the need for high-speed broadband networks to national competitiveness, local choice and competition among providers.

“We’re talking about a national priority; about the maintenance of economic leadership; about America’s continuing to be the home of innovation,” he said. “We need faster networks in more places. I don’t know about you, but I’m tired of seeing the charts of where the U.S. ranks in comparison to the broadband speeds of other nations. Table stakes for the 21st century is 25 Mbps, and winning the game means that all consumers can get at least 100 Mbps – and more.”

The obligation of local officials is to be proactive in facilitating the build out of wireless and wireline broadband networks, Wheeler said.

“Local officials with permitting authority have a special obligation to both their own communities and to the larger society,” he said. “If the infrastructure for both wired and wireless broadband networks doesn’t receive the prioritization that it warrants as a major national imperative, all the efforts to create faster, cheaper, better broadband service that will enhance our nation’s competiveness … will go for naught.”

The FCC will vote on a new set of federal policies aimed at streamlining the siting of wireless facilities at an Opening Meeting on Oct. 17, according to Wheeler.

Wheeler said the proposal will take concrete steps to “immediately and substantially ease the burdens associated with deploying wireless equipment,” particularly the collocations and deployments of small cells that can be installed “unobtrusively.”

It is believed that the Report and Order will be based on the rulemaking initiated in January 2013 to clarify Section 6409(a) of the tax act of 2012, which streamlines the deployment of certain wireless infrastructure. The legislation, which states that a locality “may not deny, and shall approve” a collocation request, has not yet been integrated into FCC regulations.

“At the FCC, we will use our authority to attack the broadband deployment challenge,” Wheeler said.

At the same time, Wheeler said he wants to preserve the frontline authority of local and tribal governments to determine which structures are appropriate for wireless deployment as well as the authority to enforce building codes and electrical codes and to require the use of concealment designs.

“You have the ability to develop national best practices that embrace strategies that have been shown to work in today’s technological and economic environments – strategies that embrace new technology and new ideas to facilitate the timely deployment of wired and wireless broadband,” he said. “We will work with you, so that national best practices are included in our “Agenda for Broadband Competition…the ABCs of consumer choice in the 21st century.’”

Jonathan Kramer, a municipal consultant with Telecom Law Firm, was cautious in his reaction to Wheeler’s speech.

“The chairman made clear that the commission sees an important continuing role for state, local and tribal governments to play in wireless tower siting, but it appears that that role will be somewhat less than has existed up to now: How much less will determine whether governments retain an important role, or feel that they have just been rolled,” Kramer said. “We’re all looking forward to October 17th when we learn how the Commission’s regulatory vision will, we hope, fairly balance the expedited deployment of wireless services with the preservation of important local community values.”

FCC Looks to Speed Wireless Build Out

The FCC has released a Notice of Proposed Rulemaking, known as the broadband deployment proceeding, which is designed to speed up the deployment of wireless infrastructure. Cell site collocations, DAS and small cell deployments, and temporary towers are all included the proceeding. PCIA The Wireless Infrastructure Association applauded the commission’s aggressive approach to streamlining its rules.

“The commission demonstrated real leadership by taking such a comprehensive approach to deal with the wireless data crunch,” said Jonathan Adelstein, PCIA president and CEO.

Russell Fox, a member of the law firm Mintz Levin, said all of the proposals, if approved, would speed up tower siting.

“All of the proposals are designed to remove impediments and burdens or otherwise clarify the current regulations,” Fox said.

Municipalities will not be supportive about what they see as the federal government’s infringement on local control of cell site zoning, according to Jonathan Kramer, wireless consultant to several cities in California.

“Everyone knew it was coming, yet the commission has gone beyond what some expected by asking us to comment on fundamental issues of whether the federal or state and local governments control local land use and safety codes, and how to torture the plain words of what many see as a fundamentally flawed, arguably unconstitutional federal cram-down,” Kramer said.

Section 6409(a) of the Middle Class Tax Relief and Job Creation Act of 2012, which streamlines the regulatory process for collocations, will take center stage as the commission seeks to clarify and implement the congressional mandate that states: “A state or local government may not deny, and shall approve, any eligible facility’s request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”

To do that, the FCC must clarify the scope of the provision and define several of the statutory terms. In January, the FCC’s wireless bureau provided interpretations of terms such as “wireless tower or base station” and “substantially change the physical dimensions.” But the Intergovernmental Advisory Committee believes the commission should issue definitions in a formal process.

“This law [Section 6409(a)] has enabled upgrades from 3G to 4G LTE technology in record time, and defining its terms will further accelerate that progress,” Adelstein.

The NPRM puts into the rules some of the guidance that has previously been provided by the FCC, offering interpretations of the certain phrases in 6409(a), according to Fox.