5G Preemption Is Coming

WASHINGTON — The Federal Communications Commission will vote on an order at its March 22 meeting eliminating the need for federally mandated historic preservation and environmental reviews when deploying small cells, meaning states and localities without such rules will be out of luck.

By removing the National Historic Preservation Act and National Environmental Policy Act from the equation, the FCC would pave the way for streamlined installation of 5G networks—once the technology is realized.

But proponents of local self-reliance see it as phase one in transferring the management of public rights of way and the leasing of access from counties and cities over to the wireless industry. Phase two would be the FCC’s adoption of the industry-leaning Broadband Deployment Advisory Committee’s recommendations that local governments be allowed only 30 days to make permitting decisions and leases over and above the cost of the permitting process be limited.

“Part of the problem that has created some of the discomfort has been the state laws and the result of that BDAC committee, which take away local rights,” Deb Socia, executive director of Next Century Cities, said during a discussion at the National Association of Counties legislative conference in the nation's capital on Saturday. “Some of this legislation seems like a sledgehammer to kill a flea.”

Next Century Cities advocates for local input and control, and points to local ordinances and agreements with wireless carriers that streamline infrastructure deployment without giving up either.

Still the wireless industry has managed to circumvent many such ordinances at the state level through the passage of preemptive laws.

“Nobody’s grandfathering you in,” said Gerry Lederer, partner at the law firm Best Best & Krieger. “So win the battle at the state level, and then get to developing your ordinances.”

Houston-based Crown Castle is the largest shared infrastructure and telecommunications provider in the U.S., and Government and External Affairs Manager Rebecca Hunter advocated a cooperative approach to partnering on deployments.

While the conversations might not always go well from a local standpoint, Hunter said, the industry still wants to work with states, counties and cities in spite of any FCC order.

“It’s still a relationship with you at the local, municipal levels,” she said. “It’s still infrastructure that’s going to serve your community.”

Lederer argued the industry can’t support state legislation at the same time it wants to have those conversations because—particularly with the emphasis President Trump’s infrastructure proposal places on public-private partnerships—local governments are seeing their ability to leverage ownership of rights of way slip away. Counties and cities need to be able to obtain fair compensation through leases as they enter P3s.

Instead local government has been painted as a barrier to wireless deployment in the industry’s recent FCC and state legislative wins.

“What we’re seeing around the country is this false narrative,” Lederer said. “Allow us access to the rights of way and government property for reduced prices, and we will build out to rural America.”