UTC Criticizes FCC’s Rules to Speed Small Cell Siting
Wednesday, September 26, 2018 | Comments

The Utilities Technology Council (UTC) expressed concern with new FCC efforts to make it easier to deploy infrastructure for 5G and other wireless services. Specifically, a new FCC rule lowers the costs and restricts the time municipalities — including public-power utilities — have to review small-cellular device siting applications.

“We are still reviewing today’s action by the FCC,” said UTC President and CEO Joy Ditto. “At first blush, we are troubled by the commission’s decision to threaten to pre-empt local authorities who are best suited to review applications to site small-wireless facilities. The utility industry understands the need for regulatory certainty when it comes to infrastructure projects. Planning system upgrades, replacements and new infrastructure takes time and money, so a deliberate review is essential to the process. Such review gives the public confidence that any new infrastructure is safe, sound, reliable and state of the art.”

Ditto said the plan approved by the FCC reduces many safeguards and overreaches in its effort to promote the deployment of 5G small cellular facilities.

“By imposing regulatory limits on the fees governmental entities can impose for small-cell attachments to municipal infrastructure — including utility poles — the FCC is overstepping its authorities under the Communications Act, which prohibits such action,” she said. “Moreover, despite the rhetoric that regulating these fees would result in broader deployment of 5G services, the reality is that the digital divide is increasing as wireless and wireline communications providers have either discontinued or significantly reduced the quality of their services in rural America.

“Reports commissioned by state agencies have concluded that lower pole-attachment fees have no impact on the deployment of broadband services in rural America. Yet, the FCC today approved rules that subsidize the wireless industry with no corresponding evidence that doing so will benefit anyone but the telecom industry itself. Worse, those Americans in unserved and underserved locations are unlikely to see any additional investment in improved broadband and wireless services.”

The first part of the FCC’s decision, a declaratory ruling, focuses primarily on local fees for the authorizations necessary to deploy small wireless facilities. According to an FCC statement, the ruling does the following:
• Explains when a state or local regulation of wireless infrastructure deployment constitutes an effective prohibition of service prohibited by Sections 253 or 332(c)(7) of the Communications Act • Concludes that Section 253 and 332(c)(7) limit state and local governments to charging fees that are no greater than a reasonable approximation of objectively reasonable costs for processing applications and for managing deployments in the rights-of-way
• Identifies specific fee levels for small wireless facility deployments that presumably comply with the relevant standard
• Provides guidance on when certain state and local nonfee requirements that are allowed under the act — such as aesthetic and undergrounding requirements — may constitute an effective prohibition of service

The second part of the commission’s decision, the third report and order, does the following:
• Establishes two new shot clocks for small wireless facilities (60 days for collocation on preexisting structures and 90 days for new builds)
• Codifies the existing 90- and 150-day shot clocks for wireless facility deployments that do not qualify as small cells that were established in 2009
• Concludes that all state and local government authorizations necessary for the deployment of personal wireless service infrastructure are subject to those shot clocks
• Adopts a new remedy for missed shot clocks by finding that a failure to act within the new small wireless facility shot clock constitutes a presumptive prohibition on the provision of services

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