FCC's 5G order faces further scrutiny in courts, Congress

Dive Brief:

The fight against the Federal Communications Commission’s (FCC) order streamlining deployment of 5G infrastructure will continue in court this year, and will also be fought in the halls of Congress if one lawmaker’s bill moves forward.
The lawsuit against the FCC’s decision has been transferred from the Tenth Circuit Court of Appeals to the Ninth Circuit, although the court did not stay the order and it went into effect earlier this month. Meanwhile, Rep. Anna Eshoo, D-CA, introduced legislation that would overturn the FCC’s decision, known as the “Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019.”
At a panel discussion at the U.S. Conference of Mayors’ (USCM) Winter Meeting in Washington, DC, elected officials said while they want 5G technology in their cities, they also want to retain local control over their infrastructure and rights-of-way. "I like to call it local freedom: local freedom to govern ourselves," Plano, TX Mayor Harry LaRosiliere said.

Dive Insight:

The FCC’s order last September to accelerate the deployment of small cell infrastructure and cap the fees cities can charge providers provoked controversy almost immediately, with cities and USCM wasting little time in launching a lawsuit against the plan. The plaintiffs allege the FCC overstepped its authority in regulating local actions, and see it as a victory that the Ninth Circuit will now consider the lawsuit as the FCC’s ruling overturns two prior orders from that court. Gerry Lederer, a partner at Best Best & Krieger who is providing legal counsel, said having the case heard by the Ninth Circuit would give cities "home-field advantage," given the court’s history with FCC decisions.

Congressional action could be coming, too. Eshoo’s bill, which she introduced just days after the new Congress gaveled into session, has garnered support from city leaders, as it would reverse September’s ruling and another from August. During the panel discussion, Nancy Werner, general counsel for the National Association of Telecommunications Officers and Advisors, said the legislation was aimed at “putting local control, local power, local freedoms with local governments who are also on the hook for this.”

Whether the bill receives a hearing or not remains to be seen; it has been referred to the House Energy and Commerce Committee, which is also expected to be aggressive in its oversight of the FCC and the order in question, said Alex Hoehn-Saric, chief counsel for the committee’s subcommittee on communications and technology.

Meanwhile, cities must comply with the order, something that is already being tried out in Boston with some success. Mike Lynch, director of the city’s broadband and cable office, said when applications to install small cells in the city are received, 80% of those applications get a decision in 10 days or less. He said that turnaround time, which complies with the FCC’s order, means the city has "given the industry what they wanted," namely certainty and efficiency.

During the USCM panel discussion, mayors said while it may be an uphill battle to get the FCC’s order reversed, they will keep fighting in the interests of regaining local control over their infrastructure and fee structures. "The FCC's attempt to assert national control over local infrastructure choices is a misguided invasion of local authority, and it's contrary to the law," Portland, OR Mayor Ted Wheeler said at the event.