Mayors Eye Two-Pronged Attack on FCC’s Preemptive 5G Order

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The latest effort is a new bill in Congress that would overturn the agency on its rule that strictly limits how much local governments can charge providers and how long officials can take to process applications.

WASHINGTON — Mayors expressed optimism Thursday a new House bill could provide an alternative path to overturning a Federal Communications Commission order preempting local authority over fifth-generation wireless deployments.

H.R. 530, authored by U.S. Rep. Anna Eshoo, a California Democrat, would undo rules that went into partial effect on Jan. 14 requiring cities to move on wireless providers’ small cell applications within set timeframes while capping fees to access public rights of way.

FCC restrictions on the aesthetic limits cities can impose on providers take effect April 15, unless Congress acts or cities led by Portland, Oregon, are successful in their lawsuit against the commission pending in the 9th U.S. Circuit Court of Appeals asserting irreparable harm.

Portland Mayor Ted Wheeler told his U.S. Conference of Mayors colleagues at their winter meeting in D.C. that the city’s right of way—access to which is at the heart of its lawsuit—was its largest asset, costing taxpayers millions of dollars to establish and millions more to maintain and manage. Companies shouldn’t just be able to take advantage of this public property without paying their fair share, he said.

“[Digital equity] can’t be achieved without reliable, high-speed broadband to access essential services like education, employment opportunities and health care,” Wheeler said. “But I will never ask Portland residents to subsidize multi-billion-dollar companies, who currently have no obligation whatsoever to serve low-income communities.”

While the suing cities’ attempt to stay the FCC order failed in the 10th Circuit, their cases were shifted to the 9th Circuit. The move should give cities “home-field advantage” because the FCC order overturned two long-standing rulings by that court, said Gerry Lederer, partner at the law firm Best Best & Krieger.

If the order is overturned, the FCC would be back to square one, said Alex Hoehn-Saric, chief counsel with the House Subcommittee on Communications and Technology.

U.S. Rep. Frank Pallone, a New Jersey Democrat, is the newly appointed chairman of the House Energy and Commerce Committee and believes in swift 5G deployment in collaboration with state and local officials, Hoehn-Saric said.

“Congress did not authorize or empower the FCC to trample on localities and effectively usurp our property rights, yet this is what they’ve done,” said Piscataway, New Jersey Mayor Brian Wahler, whose city is in Pallone’s district.

The FCC commissioners who backed the order, all Republicans, argued it would save $2 billion in the U.S.’s race to deploy 5G, the faster wireless service expected to boost economic opportunity, before other countries—thereby dictating the technology’s applications.

Should the FCC’s order be upheld, some providers have already requested it not only be applied to wireless infrastructure but wireline infrastructure as well, said Nancy Werner, general counsel for the National Association of Telecommunications Officers and Advisers, a group representing government officials.

Eshoo’s bill would restore local control, Werner said.

“We all support 5G. We all support deployment,” Werner said. “We just want it to be done in a balanced way that reflects local needs and concerns.”

Wheeler said local partnerships between communities and telecom companies, without FCC intervention, were the best path to 5G.

Boston worked with providers to streamline its small cell application process.

“We’re using Google forms, Google maps and Google sheets,” said Mike Lynch, director of the city’s Broadband and Cable Office and NATOA president. “We’ve given the industry what they’ve wanted.”

Austin, Texas, also sat down with the telecom industry and worked out a small cell agreement, only to be preempted by both state law and then the FCC’s order. Texas’ law prevents cities from cutting exclusive deals with providers to access rights of way and utility poles, caps permitting fees at $250 per wireless facility, and regulates small cell aesthetics.

The FCC’s order doesn’t supercede harsher state laws preempting local 5G authority, and Eshoo’s bill doesn’t address state laws.

McAllen, Texas, led 22 cities in ongoing cases suing the state over its law and was joined by Austin arguing the government had violated the Texas constitution’s anti-gifting of public assets provision, as well as Austin home rule.

“You’ll notice neither of those provisions have anything to deal with 5G or technology,” said Austin Mayor Steve Adler. “I think it’s really unfortunate that right now the poster child for dysfunction with respect to the local freedom movement is a technology that is so desired and so important to communities.”

Dave Nyczepir is a News Editor at Route Fifty and is based in Washington, D.C.

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