Package of Industry-Backed Legislation Removes Local Control and is Poised to Remove Industry Liability for Communications
A storm of local, state and now Federal legislation has been passed since 2016, removing the rights of municipalities and giving incentives to the telecom industry in order to speed deployment of 5G. Section 704 of the 1996 Telecommunications Act, followed by the Spectrum Act of 2013, removed most of the control of local governments to approve or deny placement of cell towers nor to consider health or environmental effects for placement. Plans to further streamline deployment of “small cells” go beyond the goal of increasing internet speed, and can contain equipment for any IoT data use including sensors and audio/visual surveillance systems for “Smart City ” development. This will include expansion of current 2G,3G and 4G systems, adding intervening spectrum usage.
The FCC Reveals Their “5G FAST Plan”
Quietly ushered in by FCC Chairman and former Verizon attorney, Ajit Pai, the FCC has adopted a sweeping set of new rules which fundamentally shift the framework of communications expansion. The Facilitate America’s Superiority in 5G Technology or “The 5G FAST Plan” speeds next generation technology by
And Modernizing Outdated Regulations
These rulings remove obstacles to deployment of 5G and speed up state and local review of small cells by requiring administrative staff approval only, rather than a standard permitting process for approval. No moratorium on cell towers is allowed and the FCC is given broad authority regarding the attachment of cell tower equipment to utility poles. Policy allows “the party with the strongest incentive—new attacher—to prepare the pole quickly by performing all of the work itself, rather than spreading the work across multiple parties.” Incentive auctions will restructure wireless service by allowing TV broadcasters to sell their airwaves to wireless providers and thereby “free up wireless airwaves”. The Verge- Incentive Auctions Explained.
The The National Broadband Plan passed in congress in 2012 addresses this and other issues of broadband expansion.
State Legislation Passed
20 states have passed industry-backed legislation to streamline deployment of small cells with a cap on fees charged and fast timelines for approval. More states are expected to pass legislation to streamline cell systems in 2019, however there are already many challenges to the FCC rules as well as municipal lawsuits against states.
Source: National Conference of State Legislatures
Federal Legislation Passed
Dozens of Federal Bills to streamline deployment of cell towers have been introduced in congress in the last several years. Some bills have been combined in other bills, renamed and already signed into law. Two such bills were the Mobile Act Now (S-19) and Ray Baum’s Act (H.R. 4986) Better Access for Users of Modern Services which were combined in an omnibus spending bill called a “Trojan Horse” appropriations bill, but simply titled The Consolidated Appropriations Act, 2018 (H.R. 1625)
FCC Chaiman Ajit Pai praised leadership for signing the bill on March 23, 2018. He stated, “Today’s action by President Trump and Congress will help America lead the world in 5G. By fixing the upfront payments issue, this law will enable the FCC to commence a 5G spectrum auction later this year. It also includes the MOBILE NOW Act, which will lead to the identification of at least 255 MHz of licensed and unlicensed spectrum that will help the United States continue to lead in wireless innovation and deployment.” https://www.fcc.gov/document/chairman-pai-statement-fcc-reauthorization-legislation-becoming-law
Indicted Congressman Introduces New Radiofrequency Radiation “Safety Act” Removing Liability
Despite being indicted on charges of campaign fraud in August 2018, San Diego congressman Duncan Hunter (R- San Diego) went on to win re-election in November and quickly introduced H.R. 7236 – Radiofrequency Radiation Site Safety Information Act of 2018, on Dec 10, 2018
The stated goal is for the FCC to “promulgate regulations that provide for the establishment of an online database that contains safety information relating to the radiofrequency radiation emissions of covered facilities.” However, it later adds a clause that removes all liability in a civil action for RF emissions for “the licensee of a covered facility, the owner or property manager of a site where a covered facility is located, any person performing work at such a site or employing an individual performing work at such a site, and such other persons as the Commission considers appropriate…”, stating “A person described in subsection (b)(1) with respect to a covered facility shall not be liable in any civil action for an injury alleged to have been caused by radiofrequency radiation emissions of such facility…”
5G safety Questioned by Congress Members Blumenthal and Eshoo
Connecticut Senator Blumenthal and California Assemblywoman Eshoo sent a letter to FCC Commissioner Carr on Dec 3, 2018 formally requesting the FCC to provide scientific documentation about the safety of 5th Generation Internet connectivity, as the roll out of this new technology begins. See PST Newsblog Dec 30,2018.
Lawsuits: The Unraveling of Telecom Legislation?
With more government officials and residents aware of the hazards and pitfalls of telecommunications expansion and overuse of digital media, more legal challenges are being initiated.
- Cities are suing the FCC over limitations of their right to charge fair fees for use of public utility poles
- A Legal analysis that challenges FCC Rules for ministerial permits and other aspects of FCC Rules was written for Montgomery County Maryland
- A Citizen lawsuit was filed December 21, 2018 by the Santa Fe Alliance for Public Health and Safety against the City of Santa Fe and the U.S. Government for violations of due process and the U.S. constitution
- AT&T Services is suing the FCC for not adopting a “deemed granted” remedy for instances when a state or local government entity fails to act on a request for small cells within a reasonable time
- The NRDC challenged the FCC ruling to exempt small cells from environmental review “to retain the public’s ability to influence where the facilities are sited and to mitigate any harm they might cause.”
- Examination of 5G Small Cell Emissions show FCC Limits are exceeded within 11 feet
U.S. Court of Appeals Motions, Oppositions and Respondents in FCC Lawsuit by Date
- Montgomery_County v FCC Brief_1 2019
- 12/17/18 – FCC Lawsuit- San Jose vs FCC – Motion to Stay -10th-circuit-case-18-9568- Dec 17, 2018
- 1/1/19 – FCC Lawsuit -Respondant- January 1, 2019, Wireless industry opposition to motion to stay- 10th Circuit Case-18-9568
- 1/2/19 – FCC Lawsuit- Respondant- January 2, 2019, Wireless industry review and opposition to motion for stay of 10th-Circuit Case-18-9568
- 1/8/19 – FCC Lawsuit- Court reply to oppositions to motion to stay, January 8, 2019, -10th Circuit Case-18-9568
- 1/10/19 – FCC Lawsuit- Transfer from 10th to 9th Circuit Court of Appeals January 10, 2019
- More states expected to pass small cell legislation in 2019. Dec 17, 2018. Mike Dano. Fierce Wireless. https://www.fiercewireless.com/wireless/more-states-expected-to-pass-small-cell-legislation-2019
- County To Sue FCC Over Radio Frequency Emission Standards for Small Cell Antennas. Nov 15, 2018. Bethesda Magazine. https://bethesdamagazine.com/bethesda-beat/government/county-to-sue-fcc-over-radio-frequency-emission-standards-for-small-cell-antennas/
- The Future of 5G: The Bitter Battle for Local Control. Sept 19, 2018. Mike Maciage. http://www.govtech.com/network/The-Future-of-5G-The-Bitter-Battle-for-Local-Control.html
- The Battle of 5G.: The Newest Internet Technology Has a Diverse Cast of Characters Hoping to Control it. MIKE MACIAG | SEPTEMBER 18, 2018 AT 6:00 PM http://www.governing.com/topics/transportation-infrastructure/gov-fcc-5g-vote-internet-broadband-cities-states.html
- FCC Factsheet: Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment. Sept 5, 2018. Declaratory Ruling and Third Report and Order
WT Docket No. 17-79; WC Docket No. 17-84. https://docs.fcc.gov/public/attachments/DOC-353962A1.pdf
- Major U.S. cities revolt against FCC’s proposed small cell deployment rules. Fierce Wireless Sept 21, 2018. Mike Dano. https://www.fiercewireless.com/wireless/major-u-s-cities-revolt-against-fcc-s-proposed-small-cell-deployment-rules
- How the FCC’s massive airwaves auction will change America — and your phone service. The broadcast incentive auction will take years. April 21, 2016. Colin Lecher. https://www.theverge.com/2016/4/21/11481454/fcc-broadcast-incentive-auction-explained