American 5G deployment sees continual stunting at the municipal level

The advent of 6G network is on the horizon — with expectations of its availability in the 2030s. Due to 6G’s potential to provide economic benefits that would give them a competitive edge, countries are racing to mobilize around its research and development and are writing policy to gear up for its rollout. Despite global interest and favor for the manifold benefits of such innovation, the picture is much dimmer at the municipal level in the U.S. Deployment of 6G’s predecessor — 5G — is continually hindered.

Telecommunications companies hoping to bring 5G connection to the widespread public have faced, and been prompted to sue over, local government regulations at odds with the Telecommunications Act (TCA). These barriers prevent them from deploying their wireless infrastructure or would only permit them to do so at a costly expense. This environment will mean less wireless service and fewer of the many economic benefits that come with 5G service. To solve this dilemma, municipalities should get rid of onerous regulation and streamline their policy so it is more in line with the TCA.

According to a study by the American Consumer Institute (ACI), this regulation consists primarily of delays in approval, deployment moratoria and the imposition of high fees. The following cases show a widespread divide between the local and federal law pertaining to wireless infrastructure deployment.

Perhaps the most prominent impediment to wireless infrastructure deployment in recent municipal litigation is the delay that service providers face when applying to local governments for permits, rights-of-way (ROW), leases, etc. to deploy their infrastructure.

The recent case of Crown Castle v. Oyster Bay, NY starkly highlights the time the general process can take for an internet service provider to receive approval to deploy its wireless infrastructure. For more than six years, telecommunications company Crown Castle has sought approval from the city of Oyster Bay to install small wireless facilities in the public ROWs.

Similarly, in AT&T v. Lane County, Ore, AT&T has pursued deployment of a cell tower with leased area in Oregon for over a year to provide local wireless services. AT&T alleged the county denied its application in violation of the Telecommunications Act. The company also warned that if not amended, the current deficiencies in its service and the existing coverage gap will bring about unreliable signals for customers and problems accessing AT&T’s wireless network.

AT&T was also involved in cases where localities failed to deal with its applications in accordance with their respective shot clock rules. For example, in its lawsuit against Muttontown, NY, it alleged that Muttontown violated the New York law by their failure to hold a public hearing on AT&T’s application for a permit within 62 days of receiving the application. AT&T also alleged that the village even tried to coerce it into agreement of a false shot clock expiration date.

Spatial and distance restrictions have also been impediments to infrastructure deployment that can be arbitrary and discriminatorily unfavorable to wireless service providers. In Crown Castle Fiber LLC v. City of Pasadena, Texas, Crown Castle sued the city of Pasadena because of its spacing requirement that limits where they can install small-cell nodes in the ROWs. This policy effectively prohibited the company from deploying its network. The U.S. District judge stated that the spacing requirement is more burdensome than requirements applicable to other public ROWs’ users.

Perhaps the most onerous and arbitrary barrier to the deployment of wireless infrastructure is burdensome fees. Two recent cases in particular show the challenges telecommunications companies face with their respective local regulatory laws.

In CNSP Inc v. Santa Fe, the city required a “revenue-based fee of 2 percent of all gross charges.” CNSP claimed such a fee requires too much for using the ROW and is in violation of the 1996 Telecommunication Act Section 253.

In AT&T v. Pittsburgh, the city sought to charge AT&T a $850 fee annually for each facility in the ROW, despite the fact that the FCC has set a $270 cap in its 2018 small-cells order.

At any rate, Free State Foundation’s president Randolph May pointed out what needs to be done in the midst of inconsistency between the law at the federal and local level when he stated: “Many ongoing local disputes over deployment delays — despite the 9th Circuit affirming the FCC’s 2018 small-cells order — might show a need for Congress to take more actions to streamline deployment and provide greater clarity on what’s preempted.” Without this clarity, litigation will always follow a change in rules since people are trying to figure out what the rules are and really mean.

Moreover, as ACI points out, municipalities blocking these telecommunications companies from bringing wireless services to states are only denying consumers many economic benefits, especially rural consumers.

Telecommunications companies continue to face struggles to provide Americans across the country with reliable wireless access and services. However, they are not letting up in challenging arbitrary or discriminatory regulations and the complaints of narrow interests. While bringing 5G coverage is still a work in progress, local governments and private citizens should welcome and encourage carriers’ deployment and streamline their regulation to see a reduction in the coverage gap and massive growth in their economies.

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