By Kathleen Q. Abernathy, Special Counsel at Wilkinson Barker Knauer LLP in Washington, DC who served as a Commissioner at the FCC from 2001 to 2005.
U.S. companies are investing hundreds of millions of dollars in America’s wireless infrastructure as they lay the groundwork for the next generation of wireless services. This fifth-generation wireless technology (5G) will unleash new applications and capabilities that improve health care, better manage our natural resources, increase highway safety, and grow the economy. One estimate predicts that 5G deployment will boost U.S. GDP by an estimated $500 billion and create 3 million new American jobs.1 Not surprisingly, there is a global race to 5G deployment taking place—one that pits the U.S. against the rest of the world—and success depends on a nationwide, consistent approach to 5G development and deployment.
America is fortunate to have a private sector ready, willing, and able to invest both the financial and human-capital resources critical to long-term success. In addition, the legal framework, as set forth in the Communications Act, not only empowers but also requires the Federal Communications Commission (FCC) to encourage nationwide broadband deployment. At its core, Congress determined that the FCC can preempt states and localities that act inconsistently with this nationwide mandate because a uniform and consistent national approach best serves the public interest.
Two of the Act’s provisions are particularly relevant to removing local barriers that thwart wireless infrastructure investment: § 253 specifically allows the FCC to remove state and local barriers to entry in telecommunications (including wireless), and § 332(c)(7) authorizes the FCC to address barriers to the siting of personal wireless-service facilities. Both § 253(a) and § 332(c)(7)(B)(i)(II) bar local requirements and actions that “prohibit or have the effect of prohibiting” an entity’s ability to provide communications. In addition, § 253(c) provides that while states or localities may manage public rights-of-way and seek “fair and reasonable compensation” for their use, that management and compensation must be “competitively neutral and nondiscriminatory” and the compensation must be “publicly disclosed.” Localities are also required to act on wireless siting applications within a “reasonable” period of time under § 332(c)(7)(B)(v).
Congress delegated to the Commission the authority to execute and enforce the Communications Act,2 and—where needed—to preempt state or local requirements that prohibit or effectively prohibit communications.3 Indeed, when a statutory provision is ambiguous—as are the many undefined terms in §§ 253 and 332(c)(7)—an implementing agency’s reasonable construction is entitled to deference under Chevron.4 The U.S. Supreme Court made clear in Brand X that the FCC’s interpretation of ambiguous provisions supersedes any prior judicial interpretation that conflicts with the agency’s reading.5 Notwithstanding varying court interpretations of the ambiguous terms in §§ 253 and 332(c)(7), the FCC can set national standards interpreting those terms – and those reasonable interpretations are entitled to deference.
In fact, the FCC has already acted in a number of proceedings to interpret ambiguities in §§ 253 and 332 to remove deployment barriers, and the exercise of that authority has been recognized and upheld by the courts.
For example, the FCC’s 2009 Shot Clock Ruling and 2014 Wireless Infrastructure Order resolved a number of controversies by interpreting ambiguous provisions in § 332(c)(7) and clarifying how their requirements should be applied.6 In particular, the FCC used its statutory authority to clarify the maximum presumptively “reasonable” time frames for local review of wireless siting applications. On appeal, two appeals courts and the Supreme Court confirmed that the FCC has authority to render such interpretations and that courts must accord them deference.7 The Court’s Roswell decision reinforced that authority.8
The FCC has likewise exercised its authority to interpret the term “has the effect of prohibiting” in § 253(a). For example, in its 1997 California Payphone decision, the FCC held that state or local action effectively prohibits service when it “materially inhibits or limits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.”9 More recently, it interpreted § 253(a) to hold (citing California Payphone) that moratoria “have the effect of prohibiting” service.10 Courts have also recognized the FCC’s authority to interpret ambiguous terms in § 253.11
This legal precedent provides ample authority for the FCC to set guideposts on the meaning and application of §§ 253 and 332. Where states or localities are imposing requirements such as undergrounding that prevent service, the FCC, consistent with its statutory authority, should declare those actions per se violations of those sections—as it did recently in the context of moratoria. Likewise, where states and localities are imposing other barriers that effectively prohibit service—like denying access to rights-of-way; assessing excessive fees; treating wireless deployments in a discriminatory manner; imposing aesthetic requirements that are not reasonable, transparent, and non-discriminatory; or requiring that providers show a “gap” in service or otherwise justify their need for a site, to name a few—the FCC should use its interpretive authority to issue clarifying guideposts and should those guideposts be ignored, preemption should swiftly follow.
The FCC under Chairman Ajit Pai has demonstrated a commitment to a federal framework that is both consistent with the statutory authority granted by Congress and focused on removing barriers to entry that deter wireless innovation and investment. By exercising its statutory authority, the FCC will enable a new generation of connected devices that can improve our lives and close the digital divide. The amount of infrastructure needed for this unprecedented next step in wireless evolution cannot be overstated. It’s also hard to exaggerate the burden that disparate local siting requirements, if left unchanged, will have on slowing wireless construction or even deterring it altogether in some areas.
The need for the FCC to act is real. The statutory authority available to the FCC is clear. According to a recent CTIA-issued report, China, South Korea and the U.S. are currently leading in the 5G race, with China holding a narrow lead. It’s time for the U.S. to pull ahead.
- Accenture Strategy, Smart Cities: How 5G Can Help Municipalities Become Vibrant Smart Cities (2017).
- 47 U.S.C. § 154(i); see Nat’l Cable & Telecoms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005) (Brand X).
- See, e.g., 47 U.S.C. § 253(d).
- Chevron USA v. Natural Resources Def. Council, 467 U.S. 837, 843-44 (1984) (Chevron).
- Brand X, 545 U.S. at 982-85.
- Shot Clock Ruling, 24 FCC Rcd 13994, 14001-19 (2009); Wireless Infrastructure Order, 29 FCC Rcd 12865, 12966-73 (2014).
- See City of Arlington v. FCC, 668 F.3d 229 (5th Cir. 2012), aff’d, 569 U.S. 290 (2013); Montgomery County v. FCC, 811 F.3d 121 (4th Cir. 2015).
- T-Mobile S., LLC v. City of Roswell, 135 S. Ct. 808, 817 (2015) (Roswell).
- California Payphone, 12 FCC Rcd 14191, 14206, 14209 (1997).
- Removing Barriers to Infrastructure Investment, Third Report and Order and Declaratory Ruling, FCC 18-111, at ¶ 147 & n.542, ¶ 149 (rel. Aug. 3, 2018).
- See, e.g., TCG N.Y., Inc. v. City of White Plains, 305 F.3d 67, 75-76 (2d Cir. 2002); BellSouth Telecomms., Inc. v. Town of Palm Beach, 252 F.3d 1169, 1188 n.11 (6th Cir. 2001).