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FCC Approves 5G Tower Upgrade Plan That May Be Headed to Court

June 9, 2020, 10:03 AM

The Federal Communications Commission voted Tuesday to overrule U.S. cities and counties that want authority to stop cell tower upgrades, possibly sending the fight to the courts.

The ruing bars localities from blocking or delaying changes, such as antenna replacements, that maintain the underlying tower’s structure. Trade groups for companies including T-Mobile US Inc. sought the ruling to spur 5G investment and boost broadband capacity during the coronavirus pandemic.

Local governments may go to court to stop the FCC decision from being carried out, saying they need authority to block unsightly tower modifications. Litigation is “certainly under consideration,” said Michael Johnston, a Telecom Law Firm PC attorney who represents dozens of cities.

The ruling expands a fight that pits phone companies and the GOP-led FCC against municipalities over infrastructure control. A 2018 FCC order aimed at speeding small cell 5G deployment is tied up in the U.S. Court of Appeals for the Ninth Circuit after a lawsuit by local governments. That order established time limits for municipalities to approve small cell applications and restricted their fees on wireless carriers.

The five-member agency adopted the ruling, which takes effect immediately, in a partisan 3-2 vote, with Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks dissenting.

The agency intends its action as a clarification of a 2012 law enacted to speed 5G deployment. Under the ruling, governments can’t delay the start of a 60-day review period for tower modifications until companies take certain steps, such as meeting with local officials and making public presentations.

“We need to make sure that every community gets a fair shot at 5G,” said FCC Commissioner Brendan Carr, who led the push for the FCC action.

The FCC didn’t seek public comment and didn’t sufficiently analyze how the ruling affects communities as required by the Administrative Procedure Act, Johnston said.

“That is a big procedural problem, and it’s one that we think is a clear violation” of the law, said Johnston, who represents the Western Communities Coalition, whose members include San Diego and Boulder, Colo.

Carr said the FCC isn’t at risk of violating the law because it sought comment last year on trade groups’ request for an action that closely resembles the planned ruling.

Speeding Reviews

The trade groups, the Wireless Infrastructure Association and CTIA, which represents carriers including AT&T Inc. and Verizon Communications Inc., asked the FCC to bar localities from delaying or rejecting minor tower upgrades.

Douglas County, Colo., for example, denied T-Mobile’s request to modify a 35-foot cell tower designed to resemble a utility pole. Local officials said the changes would have made the structure look like a “marshmallow on a stick.”

The county prevailed over T-Mobile in court.

Such community actions are contrary to the 2012 SPECTRUM Act, which aims to speed the ability of companies to make changes to existing towers, said Jonathan Adelstein, president of the wireless infrastructure group. The FCC action would clarify the law, he said.

Adelstein’s group represents cell tower developers such as American Tower Corp., Crown Castle International Corp. and SBA Communications Corp.

The FCC ruling specifies what types of equipment count as minor upgrades and what aesthetic and concealment conditions local governments can require on wireless infrastructure.

Zoning ‘Surrender’

Some localities argue that the FCC ruling erodes their ability to protect the look and feel of their communities, leading to lower property values and irritated residents.

The action amounts to “the surrender of local zoning authority to a federal agency and to private industry,” said Gerard Lavery Lederer, a partner at Best Best & Krieger LLP. Lederer represents dozens of local governments, including the city of Los Angeles and Montgomery County, Md.

Opponents say the ruling lets companies make extensive modifications to towers that governments had approved only because they were designed to resemble trees, flagpoles, and other objects that blend in to the surroundings.

The ruling “seems to have the effect of retroactively limiting the local governments’ effort to maintain the aesthetics and livability of their communities,” said Nancy Werner, general counsel of the National Association of Telecommunications Officers and Advisors. The non-profit represents local government officials.

Rosenworcel and Starks, in separate statements before the vote, said the ruling imposes new regulatory burdens on municipalities as they grapple with the coronavirus and protests. They criticized the agency for refusing a request by some localities to delay the vote so they could have more time to review it.

Carr said some state and local leaders object to any FCC action on infrastructure issues.

“We have an agency in Washington that is lawfully doing its job, promoting the buildout of internet infrastructure,’' he said.

A few local government officials have come out in support of the ruling, including Cheyenne, Wyo. Mayor Marian Orr. In a statement, she called the FCC’s action an “elegant solution” to “bolster connectivity.”

To contact the reporter on this story: Jon Reid in Washington at jreid@bloomberglaw.com

To contact the editor responsible for this story: John Hughes at jhughes@bloombergindustry.com; Keith Perine at kperine@bloomberglaw.com

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