AASHTO Opposes FCC Rules to Facilitate Small Cells

March 22, 2017–The American Association of State Highway and Transportation Officials (AASHTO) has expressed its opposition to conflicting FCC rules to facilitate the deployment of small cells by local governments, including by making it easier for companies to get permits and access to rights of way. Instead, FCC “policy guidance” would make more sense, it said. An ex parte filing yesterday in WT docket 16-421 responded to a public notice issued by the FCC’s Wireless Telecommunications Bureau in December (TRDaily, Dec. 22, 2016).

The public notice sought input on ways the Commission could expedite the deployment of small cells for next-generation wireless services by improving local government policies for siting wireless infrastructure and gaining access to ROWs.

It asked for comment on ways the FCC could promote such local government improvements by issuing a declaratory ruling, “including but not limited” to actions suggested by Mobilitie LLC in a petition for declaratory ruling filed in November (TRDaily, Nov. 30, 2016). Mobilitie has asked the FCC to interpret three phrases in section 253(c) of the 1934 Communications Act, as amended, to facilitate the deployment of wireless infrastructure by making it easier to get access to ROWs.

“Accommodation of utility facilities within highway rights-of-way, if allowed, is addressed by each individual state’s utility accommodation policy, which is governed by state statute and federal regulations,” AASHTO said in its filing. “On freeways, states may have more restrictive policies with regard to longitudinal utility installations within the right-of-way as provided in 23 CFR §645.209(c)(3). Since rights-of-way definitions, access restrictions, and safety considerations differ between the states, the rights granted to states to allow and regulate utilities or any other non-highway use of rights-of-way must not be infringed. Further, FCC action must not conflict or handcuff states’ efforts to maintain highway and traffic safety and the highway’s aesthetic quality, nor with federal, state, or local laws or regulations per 23 CFR §645.205(a) and 23 CFR §645.211(a)&(b). Any conflicting jurisdictional overreach in authority by the FCC creates potential litigation concerns over states’ mandated right-of-way responsibilities, obstructing their charge to provide for a safe and efficient transportation system.”

The filing continued, “In regard to the fees associated with utility siting applications within highway rights-of-way, such charges are typically cost neutral, covering only the administrative costs for processing applications and inspections. With respect to interstate highways, 23 CFR 710 Subpart D provisions require that compensation for non-highway use of right-of-way be based on their fair market value. In the case of property not used for highway right-of-way, fair market value is also typically a component for determining compensation for any accommodation on or use of the land.”

The group added that “a number of our member states do not recognize wireless providers, such as Mobilitie, as public utilities …” “Relating to Mobilitie, AASHTO does not support its petition as it contradicts state and local authority granted by state and federal codes, such as those referenced above and cited in the attached state comments, thus adversely affecting states’ ability to manage the intended use of their highway rights-of-way,” the group added. “Given the complex issues associated with right-of-way access management and the varied approaches employed by individual states, not to mention other various local jurisdictions, arriving at one solution would be difficult and tenuous at best. Rather, it may be most beneficial if this exercise resulted in policy guidance for accommodating this technology that states and local jurisdictions can use in developing or refining their programs to effectively manage such requests in balance with highway safety demands.”

Meanwhile, the Illinois Department of Transportation said in a filing posted online today “that a Declaratory Ruling from the Commission regarding the questions posed in Mobilitie’s Petition dated November 15, 2016, and the Commission’s subsequent request for comments to address those issues, is impulsive, premature and unwarranted as there is no quantifiable demonstrated need to amend or adjust existing rules at this time. Furthermore, IDOT dissuades the Commission from re-opening any preceding statutory interpretations in regards to the deployment of small cell infrastructure/wireless infrastructure.” – Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily