States contest FCC’s small cell rule, prompting Senate bill

Examples of some small cells. (Mobilitie)

Twenty-five states, including New York and California, have not adopted the Federal Communications Commission’s new rule regarding the deployment of new small cell equipment. And, a couple of states are appealing the FCC’s rule in the U.S. Court of Appeals for the Ninth Circuit, which is taking up the question of whether the FCC has authority in the matter. Now, two U.S. senators have introduced a bill that would codify many parts of the FCC’s rule.

U.S. Sens. John Thune (R-South Dakota) and Brian Schatz (D-Hawaii) reintroduced the Streamlining the Rapid Evolution And Modernization of Leading-edge Infrastructure Necessary to Enhance (Streamline) Small Cell Deployment Act. The legislation would update the Communications Act, bringing the rules for small cell deployment under federal control.

Thune and Schatz are both on the Senate Commerce Subcommittee on Communications, Technology, Innovation, and the Internet. They say the Streamline Act would help facilitate the rapid deployment of 5G networks by setting reasonable standards for public review of infrastructure siting. 

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RELATED: Editor’s Corner—Small cells can actually be quite big

Although 25 states have passed small cell legislation that essentially mirrors the FCC’s rule, 25 other states have not passed legislation, including New York and California. “We’re finding cities have a mixed response on whether they must comply,” said Melissa Mullarkey, VP of utility and government relations at Mobilitie, a provider of wireless infrastructure solutions. “As a result, there has been outreach to Congress. In order to get all states and cities to comply, you can codify what the FCC has put in place, so you won’t have to deal with a patchwork of state laws. It would be settled by having Congress weigh in.”

The proposed bill is very similar to the FCC rule. In a prepared statement, Schatz said, “This bill will advance the discussion on how to best update our national 5G infrastructure. I look forward to a robust debate as we move through the legislative process.”

Some big states, including Texas and Florida, have passed laws that essentially implement the FCC’s rule. In their case, neither the appeal in the Ninth Circuit nor the proposed legislation will have much impact. “But in the entire Pacific Northwest the legality and enforceability is very much in question,” said Mullarkey.

Given the proposed legislation in Congress and the appeal, the determination about small cell deployment could drag on for quite some time, probably into 2020.

Some of the proposed provisions of the Streamline Act include:

  • Permits must be approved or denied on publicly available criteria that are reasonable, objective, and non-discriminatory.
  • Small cell applications may be denied or regulated for objective and reasonable structural engineering standards, safety requirements or aesthetic or concealment requirements.
  • Applications must be acted on no later than 60 days for requests to collocate equipment and 90 days for other requests.
  • Flexibility and additional time is allowed for small municipalities (fewer than 50,000 residents).
  • Empowers the FCC to grant flexibility by issuing a one-time 30-day waiver of the timeframes required for action upon a request by a state or local government.
  • Fees must be publicly disclosed, competitively neutral, technology neutral, nondiscriminatory and based on actual and direct costs.

FCC Commissioner Brendan Carr said in a statement, “I commend Senator Thune and Senator Schatz for their leadership on smart infrastructure policies. Their bill demonstrates bipartisan support for fee limits, timelines, and other reforms that are key to accelerating the buildout of 5G infrastructure in communities across the country.”

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