Mayors who are suing the FCC call its small cell rules a ‘land-grab’

Next week the U.S. Court of Appeals for the Ninth Circuit will begin to hear oral arguments in the small cell case. (Getty Images)

Some mayors and other community leaders around the country are pretty steamed about the FCC’s new rules regarding small cells, and they’ll be making oral arguments in their lawsuit against the Federal Communications Commission (FCC) next week.

Dozens of cities and counties filed suit against the FCC because they say its orders — which are designed to help expedite the rollout of 5G small cells — trample on the rights of local government. And they have a list of grievances: They say the federal government is over-reaching; the rules will be a billion-dollar boon to big carriers; the small cells are ugly and destroy the aesthetics of their cities; and the big carriers will benefit without any reciprocity to provide service in underserved areas.

Next week the U.S. Court of Appeals for the Ninth Circuit will begin to hear oral arguments in the small cell case. Some mayors and other experts this week laid out their gripes about the FCC's two orders that were issued in August and September of 2018.

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San Jose, California, Mayor Sam Liccardo said his city has been working to bring internet connections to unserved areas because “We’ve got 12-year-olds doing their homework in Burger King parking lots in San Jose” because that’s a place where they can get an internet connection. The city has created a digital inclusion fund to help these unserved populations. And it gets the money for this fund from lease payments it receives from carriers for their telecommunications equipment, which is typically deployed in more affluent neighborhoods.

“The bad news is: as a result of this FCC ruling …  the FCC has completely cut the legs out from under cities by simply mandating that all leases on public infrastructure, the poles that the public, the taxpayers build and maintain must be offered at below market rates,” said Liccardo. “This results in a billion-dollar subsidy mandated by the FCC for the benefit of big telcos.”

Liccardo complained that the big telecoms are private entities focused on profit, and they don’t purport to be a public utility. Yet they want all the benefits of being treated like a public utility without any of the obligations to provide reasonably-priced service for all.

Mayor John Ernst of Brookhaven, Georgia, brought the perspective of a smaller city. Ernst said, “The biggest issue for Brookhaven is we don’t have control over our own local assets. We’re a property owner like anyone else. The FCC tells us by a matter of federal law how much our dirt is worth. And according to the FCC it’s worth very little.”

He said the FCC’s rules will result in millions of dollars lost for Brookhaven. And the rules set a precedent for other companies, such as cable providers, to grab public lands. “Georgia’s constitution prohibits gifting a public asset without fair compensation,” said Ernst. “The FCC says our constitution doesn’t matter and local control doesn’t matter.”

Mike Lynch, a broadband expert at Boston’s Department of Innovation and Technology, said the FCC’s orders “pre-empt local government and limit aesthetic control over our rights of way” without setting any mandates on telcos for coverage. “In some ways the FCC’s orders have created a land-grab process.” He said the FCC’s justification for the orders — that they’re necessary to speed 5G — doesn’t hold water. “We have over 2,500 small cell sites approved with 1,200 in process,” said Lynch. “The carriers and neutral hosts have never installed more than 250 sites in any given year, at the current rate it would take four years to build the current permits. This looks more like a land grab.”

A Bloomberg legal analyst said earlier this year, “The FCC is the ‘slight favorite’ going into the argument because it ‘wins most lawsuits and has a strong record against cities,’ but the case is a close call."

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