O’Rielly Complains that Companies Still Face Delays in Getting Access to ROWs, Tribal Approval

May 23, 2017–FCC Commissioner Mike O’Rielly complained today that companies are still finding it difficult to site infrastructure due to delays in getting access to public rights of way and approval from tribes, and he said the FCC should be ready to preempt local regulations if necessary. During a keynote speech at the Wireless Infrastructure Show in Orlando, Mr. O’Rielly said, “Despite efforts to curb such behavior, industry is still experiencing excessive delays and moratoria when filing siting applications for access to locality rights of way. The record is replete with reports of long pre-application processes before an application can be filed or is deemed complete and applications going through two years or more of review before a decision is actually made. These long, intentional delays are also turning into de facto moratoria, with endless tolling agreements and excuses about insufficient resources or the need for new local laws. Verizon, for instance, has reported that at least 34 communities either have explicit moratoria or just refuse to process applications or engage with applicants. This is blatantly illegal.

“Many localities are also imposing zoning-like procedures for facilities on rights of way, causing extensive delays and some ridiculous outcomes,” Mr. O’Rielly added. “For instance, localities are contemplating such things as network design and performance, including inserting their judgment as to whether a macro or small cell should be used to cover an area; equipment placement; and radiofrequency (RF) exposure issues. I have heard of localities denying applications for infrastructure upgrades, because the provider offers existing service and, therefore, additional facilities are deemed unnecessary. Some even go so far as saying that the infrastructure should be located underground, as if that would ever work for wireless services. Localities should not be making such decisions, and, in fact, they are expressly prohibited, under the law, from basing decisions on RF exposure.”

In the text of his remarks, Mr. O’Rielly continued, “These are not acceptable responses to new small cell technologies that need to be deployed for the U.S. to maintain its position as the leader in wireless communications. The Commission should clarify that such behavior is not consistent with the Communications Act, which clearly reads that state and local regulations may not ‘have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.’ It should also be clear that dictating providers’ technologies and network design does not fall within their authority to manage their public rights of way. And if this is not resolved quickly and satisfactorily, the Commission must be willing to use its preemption authority.”

The Commissioner added that it’s “also hard to argue that the excessive fees charged are fair and reasonable compensation for the use of the public rights of way. Fees typically include an exorbitant one-time payment – we have seen some localities charge as much as $5,000 or $10,000 per site – to review antenna structure applications and agreements. Some localities also charge for the consultants reviewing siting applications, which can be $8,500 per pole with additional inspection fees after installation. Some also charge recurring yearly fees of $6,000 per pole, while others take a percentage of gross revenues. But this entire fee structure does not add up for small cell systems that can require a site every few blocks. There needs to be a declaration that fees similar to those imposed on macro towers are not appropriate or sustainable for small cell networks.”

Mr. O’Rielly added, “The problems I just discussed are compounded by the escalating costs of the tribal approval process. One provider reports that, in 2011, they were paying an average of $439 in tribal review fees per site, and now they pay on average $6754. That’s almost a 1500 percent increase. And, more tribes have been expressing interest. For instance, 19 tribes responded to an application to add an antenna to a building in Cleveland and 39 tribes, of which 27 demanded fees, wanted to review sites in suburban Chicago. This is not economically sustainable. Further, tribes are receiving the payments, but then never respond as to whether there is actual concern, causing endless delays.

“Once again, I understand that the majority of tribes are acting in good faith but, if the others do not act reasonably, the Commission will need to look at more drastic alternatives,” the Commissioner suggested. “I have a number of ideas on how best to effectuate change if needed, and I plan to review recent comments in the record and forge a proposal, in consultation with the Chairman on the topic, in the very near future. I will certainly welcome your thoughts on the matter.”

Localities and tribes have told the FCC that the review processes and fees imposed related to the siting of infrastructure are generally reasonable.

In his remarks, Mr. O’Rielly also said he is pleased that a resolution may be in sight to the “twilight tower” problem “as the Commission formally issued an item last month seeking official comment on how this issue should be resolved. While the notice tees up the notion of grandfathering or making corrective filings as towers are identified, which I doubt the necessity of, I am willing to hear any and all suggestions. My goal is to ensure that we put an end to the twilight towers issue once and for all. Further, the notice includes, at my request, a definitive statement that there will be no enforcement action taken on legitimate twilight towers, meaning companies caught in this quagmire will not be subject to any penalties by the Commission. That’s good news!”

He also reiterated his call for congressional action concerning tower marking, noting that in 2016, “Congress passed the FAA Extension, Safety and Security Act of 2016, which included a provision that basically mandates that all towers ranging between 50 to 200 feet meet certain paint and lighting requirements.”

Mr. O’Rielly also praised tower companies for getting ready for the repacking of TV stations in the wake of the incentive auction. “While some are rightfully concerned about the ability to meet the current deadlines, I think it is not irrational that we wait to see how the first stages go before jumping to any premature conclusions,” he said. “If it looks like we cannot meet the 39-month timeframe, at some point, we can reassess. In the meantime, I suggest that everyone should take a deep breath as we head down the repack path together.”

In earlier opening remarks at the show today, Wireless Infrastructure Association President and Chief Executive Officer Jonathan Adelstein declared that “the momentum is building in Washington and across the country for our industry. People are finally waking up to just how important wireless infrastructure is to their communities.” He cited efforts at the FCC to streamline the siting of wireless infrastructure and work on Capitol Hill as well to help ease siting burdens, which he said is necessary if the U.S. wireless industry is to lead the world in 5G deployment. “The FCC is working on establishing shorter shot clocks and deemed granted remedies for collocation and new siting,” Mr. Adelstein said in the text of his remarks. “And [they’re] looking at improving the tribal review processes, a resolving twilight towers, and clearing obstacles in rights of way. Last year, the FCC amended its rules to streamline historic preservation review for collocating small wireless facilities.

“Chairman [Ajit] Pai also established the Broadband Deployment Advisory Committee.  It’ll advise the FCC on how to accelerate the deployment of infrastructure. WIA is well represented on the Committee, so we’re confident that the group will address our industry’s needs,” Mr. Adelstein added. WIA also supports legislation in Congress to make it easier to site facilities on federal lands, and he said Congress should “address costly delays by Native American tribes” and “clarify how regulations affect the deployment of small cell technologies in wireless networks.”

“We’re also working with Congress to clear up legislation that calls for the marking or lighting of many rural communications towers. Unless we fix it, it’ll place a big financial burden on the infrastructure companies, so it’s a top priority,” Mr. Adelstein added.

“We like what we’re hearing so far from the Trump Administration’s infrastructure initiative,” he also said. “The plan hasn’t been announced, but there’s a growing consensus in both the Administration and Congress that broadband infrastructure will be included.” WIA also continues to be busy on the state front, Mr. Adelstein said.

“WIA is supporting state legislation to remove regulatory barriers, reduces delays, rationalize fees and establish height limits,” he said. “In 2017, nearly two dozen bills were enacted, introduced, or will be introduced. Laws consistent with our priorities are now on the books in Ohio, Virginia, Colorado, Indiana, Iowa and Arizona. Bills are pending in Florida, California, Illinois, Minnesota, Missouri, Nebraska, New York, North Carolina, Rhode Island, Texas, and Washington. We’re helping our members get streamlined pole attachment rules that spur deployment on existing infrastructure. These rules are key to the deployment of the fiber and small cells that will supplement and feed back to existing macro sites and enable tomorrow’s 5G networks. We need to respect and work with communities to address their concerns – and push back when they go beyond reason.”

Also addressing the conference today was First Responder Network Authority CEO Mike Poth, who stressed that FirstNet is working closely with AT&T, Inc., its network partner, to deliver state plans that the two hope will convince states to let AT&T build their radio access networks (RANs).- Paul Kirby, paul.kirby@wolterskluwer.com

Courtesy TRDaily