Free State Foundation Debunked

From . . .

The Free State Foundation
P.O. Box 60680, Potomac, MD 20859

Perspectives from Free State Foundation Scholars, June 8, 2022, Vol. 17, No. 30

[Wireless Industry Propaganda Debunked]

Read the Wire America rationale in the green boxes, below.

By Seth L. Cooper and Andrew K. Magloughlin, June 8, 2022 | Original Free State Foundation opinion piece here.

  • Seth L. Cooper is Director of Policy Studies and a Senior Fellow at the Free State Foundation, a free market-oriented think tank in Rockville, MD.
  • Andrew K. Magloughlin is a Legal Fellow of the Free State Foundation

Wire America: Cooper and Magloughlin are wireless industry lobbyists — well-paid industry mouthpieces who are attempting, in vain, to revive the crumbling wireless industry’s agenda to streamline the deployment of 800,000 to 1,200,000 so-called “small” Wireless Telecommunications Facilities (sWTFs) across the US. The wireless industry is trying to attach its inferior wireless broadband onto the “Broadband for all” train, a train that has already left the station — a train that has chosen to install far superior, wired broadband with fiber-optic/coaxial cables direct to all premises — FTAP. Cooper and Magloughlin are attempting to replace the simplistic, over-hyped, and failed battle cry from 2017 “the Race to 5G” with a new false clam: that wireless broadband and wireline broadband are “functionally equivalent services.”

Cooper and Magloughlin’s position lacks foundation. This is why: the U.S. Supreme Court ruled in 2005 in Palos Verdes v Abrams: a ruling that established that the definitive document of the legislative intent of the 1996 Telecommunications Act (“1996-Act”) was the 1996-Act’s Conference Report, which says:

“When utilizing the term ‘‘functionally equivalent services’’ the conferees are referring only to personal wireless services as defined in this section that directly compete against one another. The intent of the conferees is to ensure that a State or local government does not in making a decision regarding the placement, construction and modification of facilities of personal wireless services described in this section unreasonably favor one competitor over another. The conferees also intend that the phrase ‘‘unreasonably discriminate among providers of functionally equivalent services’’ will provide localities with the flexibility to treat facilities that create different visual, aesthetic, or safety concerns differently to the extent permitted under generally applicable zoning requirements even if those facilities provide functionally equivalent services. For example, the conferees do not intend that if a State or local government grants a permit in a commercial district, it must also grant a permit for a competitor’s 50-foot tower in a residential district.”

Conclusion: federal preemption over local authority only exists for three narrow decisions (placement, construction and modification of personal wireless service facilities) and only if there is a significant gap in telecommunications service: the inability to place an outdoor wireless phone call in most places — not in every conceivable place. There is no federal preemption for wireless broadband — not in the 1996-Act and not purported by the FCC. The FCC has no jurisdiction over local zoning laws that are consistent with the 1996-Act.

The following Cooper and Magloughlin opinion piece is merely an attempted re-tooling of a previously failed marketing campaign.

Note: The views expressed in this Perspectives do not necessarily reflect the views of others on the staff of the Free State Foundation or those affiliated with it.

I. Introduction and Summary: The FCC Should Preserve and Expand Its Broadband Infrastructure Reforms

When a bipartisan panel of past and present FCC Commissioners spoke at the Free State Foundation’s Fourteenth Annual Policy Conference on May 6, all appeared to agree that removing local barriers to infrastructure buildouts is important to the success of the $45 billion Broadband, Equity, Access and Deployment (“BEAD”) Program and other federal programs intended to promote broadband deployment. The Commission can and should do more to remove such deployment barriers.

Between 2018 and 2021, the Commission adopted several reforms that cleared local regulatory obstacles to the construction of wireless and wireline broadband facilities.

Wire America: No . . . The Commission attempted to clear regulatory obstacles to the construction of wireless broadband facilities. The FCC ran into the US Courts of Appeals DC Circuit Court and Ninth Circuit and was a serial loser in the courts over this attempted FCC overreach.

  1. Aug 2019 ruling in Case No. 18-1129: Keetoowah et al. v FCC
  2. Oct 2019 ruling in Case No. 18-1051 Mozilla et al v. FCC
  3. Aug 2020 ruling in Case No. 18-72689 City of Portland et al. v. FCC
  4. Aug 2021 ruling in Case No. 20-1025: Environmental Health Trust, Children’s Health Defense et al. v FCC

The Commission should maintain those reforms, which appear to be working.

Wire America: Many of the attempted FCC’s overreaching reforms were vacated and remanded back to the FCC. The FCC has sat on their hands and done nothing effective about these US Court of Appeals losses, rulings and mandates.

Data for 2019 and 2020 indicate that broadband access increased significantly and the number of operational cell sites rose sharply compared to prior years.

Wire America: Such data proves that the attempted FCC’s overreaching reforms were not necessary.

To ensure that the BEAD Program and other programs operate efficiently to expand broadband access, adoption, and affordability, the Commission should adopt additional reforms, including “shot clocks” for resolving pole attachment requests.

Wire America: The data from 2019 and 2020, previously cited, proves that no new reforms are necessary. FCC “shot clocks” for Wireless Telecommunications Facilities (WTF) applications are presumptive only and subject to the congressional intent of the 1996-Act, as clarified in the 1996-Act Conference Report:

“Under subsection (c)(7)(B)(ii), decisions are to be rendered in a reasonable period of time, taking into account the nature and scope of each request. If a request for placement of a personal wireless service facility involves a zoning variance or a public hearing or comment process, the time period for rendering a decision will be the usual period under such circumstances It is not the intent of this provision to give preferential treatment to the personal wireless service industry in the processing of requests, or to subject their requests to any but the generally applicable time frames for zoning decision.”

Conclusion: the FCC’s presumptive shot clocks are inconsistent with the intent of the 1996-Act, which was addressed by the Ninth Circuit in 2020 and by the US Supreme Court in 2013:

Re: The FCC Order’s 18-133 Proposed 60-Day Shot Clocks. . .

. . . the Ninth Circuit judges wrote the following in the Case No. 18-72689 Ruling, Local Govt. v FCC:

“It must be remembered that the ‘shot clock requirements create only presumptions’. As under the 2009 Order, if permit applicants seek an injunction to force a faster decision, local officials can show that additional time is necessary under the circumstances.”

. . . the Ninth Circuit judges then rule in Case No. 18-72689:

. . . We therefore hold that the FCC’s requirement in the Small Cell Order that aesthetic regulations be “no more burdensome” than regulations applied to other infrastructure deployment is contrary to the controlling statutory provision. See 47 U.S.C. §332(c)(7)(B)(i)(II).

We also hold that the FCC’s requirement that all local aesthetic regulations be “objective” is not adequately explained and is therefore arbitrary and capricious.

We therefore:

  • GRANT the petitions as to those requirements,
  • VACATE those portions of the rule and
  • REMAND them to the FCC.”

The US Supreme Court wrote in the 2013 ruling in Arlington v FCC:

“In November 2009, the [FCC], relying on its broad statutory authority to implement the provisions of the Communications Act, issued a declaratory ruling responding to CTIA’s petition. In the Declaratory Ruling, 24 FCC Rcd. 13994, 14001 . . . A “reasonable period of time” under §332(c)(7)(B)(ii), the Commission determined, is presumptively (but rebuttably) 90 days to process a collocation application (that is, an application to place a new antenna on an existing tower) and 150 days to process all other applications. Id., at 14005.”

It also should adopt shot clocks and fee caps on wireline infrastructure deployment in state and local rights-of-way.

Wire America:
There is nothing in the record that establishes that significant barriers to deployment of wireline infrastructure deployment actually exist, so there is no need for shot clocks of any kind.

The FCC Commissioners panel at FSF’s Fourteenth Annual Policy Conference can be viewed here. The panel included Republican Commissioners Brendan Carr and Nathan Simington, as well as Democrat former Acting Chairwoman and Commissioner Mignon Clyburn. In general, the panel’s discussion about infrastructure reforms was relatively short compared to prior FSF annual policy conferences.

This is best explained by the fact that many important reforms were accomplished during Chairman Ajit Pai’s tenure, including [some left out by Cooper and Magloughlin, but listed, below by Wire America]:

Wire America: The following is a more complete list of relevant FCC Orders from 2017-2021 that were partially vacated and/or remanded back to the FCC, establishing a crumbling of the FCC overreach attempts:

  • 2018 FCC Order 17-166 — Repeal Net Neutrality Order [partially vacated and remanded to the FCC]
  • 2018 FCC Order 18-30 — No Environmental Review for “Small Wireless Facilities” Order [partially vacated and remanded to the FCC — a ruling which wiped out the FCC definition for “Small Wireless Facilities”]
  • 2018 FCC Order 18-111 — No Moratorium and One Touch Make Ready Order [partially vacated and remanded to the FCC]
  • 2018 FCC Order 18-133 — So-called “small” Wireless Telecommunications Facility (sWTF) Streamline Deployment Order [partially vacated and remanded to the FCC]
  • 2019 FCC Order 19-126 & 19-226 — Proposed Changes in the Commission’s Rules Regarding Human Exposure to Radiofrequency, Electromagnetic Fields Reassessment of Federal Communications Commission Radiofrequency Exposure Limits and Policies and Targeted Changes to the Commission’s Rules Regarding Human Exposure to Radiofrequency Electromagnetic Fields [remanded to the FCC]
  • 2021 FCC Order 21-10 — Change in Over-the-Air-Reception-Devices Rules Order, upheld by the DC Circuit, in record-breaking timing.

Local regulatory barriers to broadband infrastructure deployment have come in the forms of moratoria on construction permit approval, lengthy administrative processing periods for permit applications, high fees for filing permits that bear no relation to the costs of reviewing applications, and high recurring fees for providing service. All such local administrative burdens have stood in the way of expanding Americans’ access to broadband services and to next-generation network upgrades.

Wire America: The preceding is merely a conclusory statement, presented without evidence.

Moreover, according to findings in the Commission’s 2018 Small Cell Order, providers in highly populated cities tend to serve populated markets first, and thus local governments in dense cities have monopoly power to implement high fees and barriers to entry. But consumers in less populated areas potentially shoulder a disproportionate burden of the fees and barriers implemented in highly populated cities because serving less populated areas is generally costlier and thus is less profitable. In other words, excessive fees and other regulatory cost barriers to entry in high-population areas drain resources for deployment in the less populated, less profitable communities, exacerbating the digital divide.

Wire America: The preceding is an old, tired wireless industry argument that holds no water. The reason we have a Digital Divide is that the incumbents misappropriated rate-payer funds earmarked for copper to fiber optic upgrades and used it to build out its 4G wireless networks — violating Title 47 §254(k):

“(k) Subsidy of competitive services prohibited. A telecommunications carrier may not use services that are not competitive to subsidize services that are subject to competition. The Commission, with respect to interstate services, and the States, with respect to intrastate services, shall establish any necessary cost allocation rules, accounting safeguards, and guidelines to ensure that services included in the definition of universal service bear no more than a reasonable share of the joint and common costs of facilities used to provide those services.”

The incumbents overserve already-served, high-income neighborhoods without serving low-income neighborhoods at all. The wireless industry’s decisions/policies — not those proposed by cities interested in getting broadband to everyone — are the real problems. No removal of regulatory barriers will force incumbents so serve low-income neighborhoods. Any money left over will go to the incumbents’ bottom lines, not to serve the underserved.

The Commission’s important recently-adopted infrastructure policy reforms preempt such barriers to broadband facilities construction and upgrades.

Wire America: The preceding statement is simply wrong. Read the actual rulings, cited above.

By reducing unnecessary local regulatory costs, the Commission’s reforms help preserve provider resources for investment in additional broadband infrastructure, including in harder-to-serve areas. And the elimination or reduction of excessive local administrative delays allows consumers timelier access to 5G, fiber, and gigabit-speed cable broadband services.

Wire America: The preceding statement is simply wrong. Read the green boxes, above.

There is evidence that the infrastructure reforms adopted by the FCC between 2018 and 2021 are working. For example, a court issued a swift injunction based on the 5G Upgrade Order in T-Mobile West, LLC v. City and County of San Francisco (2021), preventing a local government from delaying equipment modifications.

Wire America: Really? This is what the ruling actually says:

2019 CA Supreme Court Ruling in T-Mobile v San Francisco

“. . . the City has inherent local police power to determine the appropriate uses of land within its jurisdiction. That power includes the authority to establish aesthetic conditions for land use . . . . the word “ ‘incommode’ means ‘[t]o give inconvenience to; to give trouble to; to disturb or molest in the quiet enjoyment of something, or in the facility of acquisition.’ ” . . . Obstructing the path of travel is one way that telephone lines could disturb or give inconvenience to public road use. But travel is not the sole use of public roads; other uses may be incommoded beyond the obstruction of travel. . . . For example, lines or equipment might generate noise, cause negative health consequences, or create safety concerns. All these impacts could disturb public road use, or disturb its quiet enjoyment.

Cooper and Magloughlin are mischaracterizing this ruling.

But overall, it appears that few cases have been filed – which could mean that localities are no longer issuing moratoria on permits or delaying new cell site builds or upgrades en masse. Also, since the passage of infrastructure reforms, cell site and fiber deployment has been expedited. According to data from CTIA, at the end of 2020 there were over 417,000 cell sites in operation, a 35% increase compared to 2016. And at least 60.5 million homes were passed by fiber in 2021, an annual increase of 12%, up from a 10% annual increase the previous year.

Wire America: Fiber optic cables “passing by homes” means nothing if the people are not able access that fiber and connect it directly to their homes.

Additionally, there is a burgeoning fixed wireless broadband industry that is rapidly gaining subscribers; see broadband subscriber additions in Q1 2022.

From Leichtman Research

“Top broadband providers added over one million subscribers in 1Q 2022, similar to last year’s first quarter, but the distribution of net broadband additions differed from a year ago,” said Bruce Leichtman, president and principal analyst for Leichtman Research Group, Inc. “Fixed wireless services accounted for half of the net broadband adds in 1Q 2022, compared to about 10% of the net adds in 1Q 2021.”

Wire America: Fixed wireless is a little over 1% of the total broadband market through the end of 1Q 2022.

Broadband Providers Subscribers at end of 1Q 2022 % Subscribers Net Adds in 1Q 2022 % Adds
Cable Companies 75,614,808 69.2% 482,830 45.3%
Wireline Phone Companies 32,273,350 29.5% 50,350 4.7%
Fixed Wireless Services 1,417,000 1.3% 532,000 49.9%
Total Broadband 109,305,158 100% 1,065,180 100%

Also real broadband prices are dropping — by 6.6% for fixed and 9% for wireless — even while other goods and services are squeezed by inflation and supply chain shocks.

Some government officials have opposed the FCC’s broadband infrastructure reforms. But two key arguments previously raised against those reforms have been effectively dismantled.

  • In City of Portland v. FCC (2020), the Ninth Circuit rejected arguments raised by local governments, and previously voiced by then-Commissioner Jessica Rosenworcel, that the Commission lacked authority to cap deployment fees imposed by local governments on wireless broadband providers for permit applications and rights-of-way usage involving wireless facilities.

Wire America: Wrong, again. In fact, The fees are not capped by the FCC. Cities are free to negotiate fees under FCC Order 18-133. The authors are confusing a proposed “presumptive safe harbor” fee for a fee cap.

Certainly, the Commission ought to preserve its broadband infrastructure reforms. Now that the federal government plans to spend over $45 billion via the BEAD program and many billions more through other broadband-related programs, those reforms are more important than ever.

Wire America: Wrong, again. The presumptive statements made in FCC 18-133 are just that presumptions and guidance, not binding. How do we know? The FCC admitted that as much in court — in front of a three-judge panel — as you can read here →

Scott Noveck, FCC Attorney on Feb 10, 2020 in US Courts of Appeals, 9th Cir.

“The Order doesn’t purport to prevent localities from addressing reasonable aesthetic requirements. In fact we say in the small cell order that aesthetic requirements are permitted . . . a locality could say if a 50-foot pole would be out of character with the surrounding neighborhood, you can’t put up a 50 foot pole.”

“Localities are still free to craft their own substantive aesthetic requirements”

“These Orders [FCC 18-111 and FCC 18-133] are not self-enforcing. They contemplate the need, in many circumstances, for further case-by-case adjudication and in those instances either someone would have to come back to the Commission or go into court.”

“Nothing in this order is self-enforcing.”

“Anyone of these specific factual disputes that arise, this Order is designed to provide some clarity and narrow the scope of disputes . . . when there are remaining disputes, nothing about this Order is self-enforcing.”

The FCC has published a Notice of Proposed Rulemaking that proposes applying shot clocks and expedited dispute resolution requirements relating to pole attachments. The Commission could consider similar actions for wireline deployments in state and local government rights-of-way.

II. The Communications Act and the FCC’s Infrastructure Siting Reforms

In the Telecommunications Act of 1996, Congress amended the Communications Act to provide the FCC with deregulatory tools to “promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.”

Multiple provisions in the Communications Act have preemptive effect on local regulatory impediments to the construction of communications facilities.

Title 47 US Code, Section 253(a) states:

“[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”

Wire America: So what? That preemption is only to prevent prohibition of telecommunications service — the ability to make outdoor wireless phone calls. This section does not apply to fixed wireless broadband at all. There is no preemption for wireless informations services.

Title 47 U.S. Code Section 332(c)(7) states

“[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—(I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”

Wire America: So what? Once again, this applies only to personal wireless services which are telecommunications services — i.e. the ability to make outdoor wireless phone calls. This section does not apply to fixed wireless broadband at all. There is no preemption for wireless informations services.

Likewise, Section 1455(a) of the Communications Act, enacted as part of the Middle Class Tax Relief and Jobs Creation Act of 2012, mandates state and local governments to approve wireless equipment modifications that do not “substantially change the physical dimensions” of a “tower or base station.” And Section 303(d) gives the Commission sole regulatory authority over “radio stations,” which include residential rooftop antennas for fixed wireless broadband that previously have been restricted by state and local governments, as well as contract provisions in restrictive covenants or residential leases.

Wire America: There is rampant cherry picking in this argument. How are radio stations regulated by the 1934 Communications Act, as modified by the 1996 Telecommunications Act and the 2012 Middle Class Tax Relief and Jobs Creation Act ? They must adhere to the following, as cited here

Title 47 U.S. Code §324 – Use of Minimum Power:

In all circumstances . . . all radio stations. . . shall use the minimum amount of power necessary to carry out the communication desired.

In personal wireless services, the “communication desired” is outdoor wireless phone calls and the minimum amount of power to do that is -125 dBM to -85 dBM in areas accessible to people — and no higher.

The FCC also can preempt barriers to infrastructure deployment using other authorities. For example, Section 224 of the Communications Act gives the Commission authority to regulate pole attachment agreements to prevent discrimination and the exercise of monopoly power to charge above-market rates for access to poles.

Wire America: Hold on, Title 47 U.S. Code § 224 only applies to states that choose not to regulate pole attachments on their own. Most states choose to regulate such matters so § 224 does not apply to them. Cooper and Magloughlin’s statements are misleading.

Title 47 U.S. Code § 224 – Pole attachments

(c) State regulatory authority over rates, terms, and conditions; preemption; certification; circumstances constituting State regulation

  • (1) Nothing in this section shall be construed to apply to, or to give the Commission jurisdiction with respect to rates, terms, and conditions, or access to poles, ducts, conduits, and rights-of-way as provided in subsection (f), for pole attachments in any case where such matters are regulated by a State.
  • (2) Each State which regulates the rates, terms, and conditions for pole attachments shall certify to the Commission that—
    – (A) it regulates such rates, terms, and conditions; and
    – (B) in so regulating such rates, terms, and conditions, the State has the authority to consider and does consider the interests of the subscribers of the services offered via such attachments, as well as the interests of the consumers of the utility services.

During the chairmanship of Ajit Pai, the FCC relied on these authorities when it adopted wireless and wireline infrastructure reforms intended to remove local regulatory obstacles and expedite broadband deployment:

Wire America: But, much of the following was wiped out and remanded back to the FCC for further work. What matters i s not what appears in the various FCC Orders, but which provisions have survived various lawsuits in the US Courts of Appeals and other Federal District courts. These FCC Order provisions are all open to challenge.

  • The 2018 Moratorium Order prohibits states and local governments from explicitly or constructively banning the deployment of new communications facilities. As the Commission found, many localities had attempted to prevent deployment of new broadband facilities by banning new deployments for fixed or indefinite periods of time, or otherwise refusing to approve any new facilities despite lack of an official policy stating so. The Moratorium Order rightly interpreted Section 253(a) of the Communications Act to preempt those state and local policies, because they plainly fall within the statute’s prohibition on actions that “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”

Wire America: Once again, this only applies to telecommunications service, not information service, so it does not apply to fixed wireless broadband information service.

  • The 2018 Small Cell Order imposes shot clocks, or deadlines, for local governments to approve or deny applications for “small wireless facilities,” or “small cells.” These modern small wireless antennas are often deployed on poles or on building rooftops to provide [densified 4G/]5G service. The order reasonably interpreted state and local government failure to approve or deny small cell applications within applicable timeframes as presumptive “prohibitions” on wireless service under Section 322(c)(7). Under the order, infrastructure providers who are aggrieved by local authority inaction beyond shot clock periods are permitted to file lawsuits in federal court and seek preliminary relief. Lastly, the order interpreted Section 322(c)(7) and 253(a) to bar local governments from charging fees that exceed their objective costs for processing applications and managing rights-of-way to broadband providers deploying small cells.

Wire America: Wrong again. “charging fees for processing applications and managing rights-of-way” applies to providers of telecommunications service not to providers of broadband, which is an information service. Per the Oct 2019 ruling in Mozilla et al. v FCC, the FCC no longer regulates information service by their own decree.

  • The 2018 One Touch Make Ready Order eliminates delay for broadband deployments that require pole attachment agreements. The order empowers an “attacher” of new broadband equipment to elect to perform all the necessary “make-ready” work for attaching its equipment to poles owned by another company. This solution properly aligns incentives for expedited deployment – attachers of new equipment have obvious incentive to quickly perform “make-ready” work, as compared to monopoly pole owners, which might discriminatorily stall such work to block a new competitor from entering the market.

Wire America: Wrong again. “eliminates delay for broadband deployments that require pole attachment agreements” applies to providers of telecommunications service not to providers of broadband, which is an information service. Per the Oct 2019 ruling in Mozilla et al. v FCC, the FCC no longer regulates information service by their own decree.

  • The 2020 5G Upgrade Order applies Section 1455’s provision for automatic approval to equipment modifications needed to upgrade existing facilities to 5G. The order clarifies that minor equipment upgrades involving the addition of ground equipment or taller deployments within certain parameters are not “substantial modifications” that require the issuance of new permits by state and local governments.

Wire America: This is all the more reason for localities to allow the installation of the fewest number of so-called “small” Wireless Telecommunications Facilities (sWTFs) — only those needed to close a significant gap in telecommunications service.

  • The 2021 Over-the-Air-Reception Devices Order preempts state, local, and contractual regulation of certain rooftop antennas used to provision fixed wireless broadband. The order is technically complicated, but the gist is that the Commission exercised its preemptive power to regulate radio antennas under Section 303(d) to permit broader deployment of types of antennas that improve service quality and coverage of fixed wireless networks. A FSF Blog explains the rule in more detail.

Wire America: The authors missed the key point. The OTARD rule change is not for incumbents. It is only for companies that provide wireless information service, which cannot be commingled with telecommunications service. The best thing for anyone in the US to do is not sign up for such an inferior and hazardous service and put these would be OTARD service providers out of business.

Most importantly, none of the above bullet points, cited by Cooper and Magloughlin, above, eliminate local control over the placement, construction, modification and operations of personal wireless service facilities for telecommunications service.

III. The FCC Should Pursue Additional Infrastructure Reforms on Pole Attachments and Wireline Facilities in Rights-of-Way

Chairwoman Rosenworcel should lead the FCC in pursuit of additional infrastructure reforms that will further reduce the digital divide and promote timely expansion of broadband access.

The Commission should diligently follow through with its current proceeding to update the agency’s rules for pole attachments. In particular, the Commission should adopt a shot clock for the completion of pole replacements when a replacement is necessitated by a broadband provider that seeks to attach to an existing pole.

Section 224 of the Communications Act confers the Commission the power to “regulate the rates, terms, and conditions of pole attachments to provide that such rates, terms, and conditions are just and reasonable, and . . . adopt procedures necessary and appropriate to hear and resolve complaints concerning such rates, terms, and conditions.”

Wire America: . . . but only for states that choose not to regulate such matters on their own, which is a minority of states.

Although pole attachment rules should respect the property rights of pole owners, it is also important that the rules prevent pole owners from exercising monopoly power to unreasonably deny attachments to new entrants or to charge above-market rates for leasing access to poles. In its current proceeding, the Commission should amend its rules to require a pole owner to complete the replacement or designate an authorized contractor to do so within a reasonable timeframe.

The Commission also ought to amend its rules regarding wireline broadband infrastructure by adopting shot clocks and fee caps for deployments of wireline facilities in state and local rights-of-way. This idea for reform was suggested by Commissioner Carr at the Free State Foundation’s Fourteenth Annual Policy Conference. The Commission could adopt this reform by expanding its present interpretation of Section 253(a), as upheld by the Ninth Circuit in City of Portland v. FCC (2020), to also apply to wireline deployments.

Wire America: “Expanded interpretations” do not matter; federal court rulings matter.

Importantly, the Commission ought to act with dispatch in advancing infrastructure reforms for pole attachments and wireline facilities deployments using rights-of-way. The reduced costs and other regulatory obstacles to network infrastructure buildout certainly will help speed deployment of 5G, fiber, and cable broadband services.

Wire America: The Leichtman Research data, cited above, shows that everything is proceeding fine. There is no need for any additional preemption of local regulations.

IV. Conclusion

Local permit approval and other regulatory costs have long posed one of the most significant barriers to broadband deployment. But the FCC’s 2018 Moratorium Order, 2018 Small Cell Order, 2018 One-Touch-Make-Ready Order, 2020 5G Upgrade Order, and 2020 Over-the- Air-Reception-Devices Order have cleared many of those barriers. Coinciding with those important broadband infrastructure reforms, broadband deployment has accelerated, operational cell sites have increased significantly, and consumer broadband prices have dropped.

Wire America: Cooper and Magloughlin are overstating the impact of the neutered FCC Orders from 2017 to 2021 which had many provisions vacated and remanded. The FCC has not yet acted on these remands, which is actually crumbling the so-called “small” Wireless Telecommunications Facilities (sWTFs) agenda.

Now that the federal government plans to spend $45 billion on broadband deployment via the BEAD program and billions more through other broadband-related programs, those infrastructure reforms are as important as ever.

Wire America: The $45 billion will be issued. No new infrastructure reforms are needed. Full stop.

Indeed, the infrastructure reforms adopted by the Commission during Chairman Pai’s tenure should be expanded.

Wire America: Little of Pai’s efforts survived court challenge, and the FCC could wipe even more of it out, once the people of the Unites States have a full set of five FCC Commissioners confirmed.

Two promising new reforms that the Commission can pursue include shot clocks for pole attachments as well as shot clocks and fee caps for wireline facilities deployments using state and local rights-of- way.

Wire America: Cooper and Magloughlin did not state a convincing case. They are just repeating the same old baseless “Race to 5G” rhetoric that does not square with the actual rulings in the US Courts of Appeals in the DC Circuit and the 9th Circuit, cited above. Reread the rulings and try again, gentlemen. This time don’t cherry pick these rulings. Wireless radio frequency microwave radiation is bioactive and is currently being insufficiently regulated. Therefore, each state or locality can regulate the maximum power output of microwave radiation from wireless infrastructure antennas that reaches any areas that are accessible to human beings and other living organisms, consistent with the 11,000+ pages of peer-reviewed, scientific evidence that Environmental Health Trust and Children’s Health Defense and others plaintiffs placed in the FCC’s public record: Vol-1, Vol-2, Vol-3, Vol-4, Vol-5, Vol-6, Vol-7 Vol-8, Vol-9, Vol-10, Vol-11, Vol-12, Vol-13, Vol-14, Vol-15, Vol-16, Vol-17, Vol-18, Vol-19, Vol-20, Vol-21, Vol-22, Vol-23, Vol-24, Vol-25, Vol-26 and Vol-27.

This page is one of three legs of the stool that establishes local control over the operations of Wireless Telecommunications Facilities (WTFs); the other two are the US House/Senate Conference Report for the 1996 Telecommunications Act (“1996-Act”) and the stated purpose of the 1996-Act: to promote the safety of life and property.

Further Readings

  • Link to Andrew K. Magloughlin, “Dropping Consumer Broadband Prices Indicate Lack of Market Power,” FSF Blog (May 13, 2022).

  • Link to Seth L. Cooper, “Fixed Wireless Access Is Boosting Rural Broadband and Consumer Choice,” Perspectives from FSF Scholars, Vol 17, No. 21 (April 25, 2022).

  • Link to Andrew K. Magloughlin, “FCC Rule Removing Barriers to Fixed Wireless Broadband Deployments Upheld,” FSF Blog (February 16, 2022).

  • Link to Seth L. Cooper and Andrew K. Magloughlin, “The Broadband Internet Services Market in January 2022: 5G, Cable, Fixed Wireless, Wi-Fi 6, and Fiber Are Benefitting Consumers,” Perspectives from FSF Scholars, Vol. 17, No. 5 (January 21, 2022).

  • Link to Andrew Long, “Section 253 Petition Rendered Moot by Responsive State Law,” FSF Blog (November 12, 2021).

  • Link to Randolph J. May and Seth L. Cooper, “Real Infrastructure Opportunity for Congress: Speed Deployment of 5G Network,” Daily Signal (July 20, 2021).

  • Link to Seth L. Cooper, “Supreme Court Order Ends Legal Challenge to FCC’s Wireless Infrastructure Orders,” FSF Blog (June 29, 2021).

  • Link to Randolph J. May and Seth L. Cooper, “Wireless Infrastructure Reforms Rest on Solid Constitutional Foundations: Congress Should Preempt Local Obstacles to 5G Deployment,” Perspectives from FSF Scholars, Vol. 16, No. 29 (June 8, 2021).

  • Link to Seth L. Cooper, “FCC Orders on Broadband Infrastructure Withstand Further Legal Challenges,” FSF Blog (November 2, 2020).

  • Link to Seth L. Cooper, “FCC Should Clear Local Obstacles to Wireless Infrastructure Upgrades,” Perspectives from FSF Scholars, Vol. 14, No. 26 (September 25, 2019).

  • Link to Seth L. Cooper, “FCC’s Proposals Promoting Infrastructure Deployment Don’t Violate Anti-Commandeering Rule,” Perspectives from FSF Scholars, Vol. 13. No. 29 (July 17, 2018).

  • Link to Comments of the Free State Foundation, Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-79 (June 15, 2017).

  • Link to Randolph J. May, “When You Think Infrastructure, Think FCC,” Morning Consult (June 14, 2017).

  • Link to Reply Comments of the Free State Foundation, Concerning Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting Policies, WT Docket No. 16-421 (April 7, 2017).