One of the most controversial orders from the last FCC chaired by Ajit Pai was the order in 2018 that small cell sites be given priority. That order made two specific rulings. First, the FCC issued a declaratory ruling which said that the FCC has the authority to override local and state regulations concerning small cell deployments. Second, the order created a ‘shot clock’ that requires localities to process small cell applications quickly while also setting a cap on local fees.
Earlier this year, NATOA (the National Association of Telecommunications Officers and Advisors) and the CWA (Communications Workers of America) released a letter and a report that argues that it’s time to revisit that FCC order. They argued that the timeline set by the order is ridiculously, short considering the complexity of some of the installations. They also point out that cellular carriers are not using the FCC order to install ‘pizza boxes’ on poles as cellular carriers originally promised but are placing devices as large as refrigerators on poles, creating dangerous situations for technicians of other utilities that have to navigate around the large devices. Finally, the letter argues that there is no justifiable reason for setting small cell application fees below cost – cities are being required to subsidize the big cellular companies.
It’s important to put the original FCC order into context before taking a position on the issues raised in this letter. Starting around 2015, the cellular industry declared an emergency and said that the US was falling badly behind China in the race towards 5G. Both the White House and the Congress jumped aboard on the issue and said that quickly deploying 5G must be a top priority for the US economy. You might recall that the US government went so overboard on the 5G race that there was even talk about the US government buying Nokia or Ericsson so that the US wouldn’t be left behind.
In this environment, where pushing 5G forward was considered a national emergency, it was easy for the FCC to push through this order that gave cellular carriers everything on their wish list concerning small cell deployments. Just six years later, we can see that 5G deployment was not an emergency. None of the big promises made about 5G have materialized, and in fact, the cellular carriers are still struggling to define a business plan that will monetize 5G.
The real reason for the push for 5G was that the 4G cellular networks were getting overloaded – and small cell sites were needed to bolster the existing cellular networks. Everybody relies on our cellular networks, and that was a legitimate reason for the FCC to take action – but the cellular companies never publicly made this argument. The carriers didn’t want the public to know that their 4G networks were in trouble since that would hurt their stock prices. Instead, the cellular companies pulled off one of the biggest public relations scams in history and invented the 5G race to push through regulations that benefitted them.
I agree with the CWA and NATOA that it’s time to put the genie back in the bottle and revisit the small cell order. Like with all regulatory policy disputes, both sides of the issue have some legitimate concerns. The cellular carriers had a legitimate beef when they said that some cities took far too long to process permits for small cell sites. The cities also had legitimate concerns – they wanted some say so in the placement and aesthetics of the small cell deployments – and they want to be able to say no to putting a refrigerator-sized device in the middle of a busy pole line.
It’s time for the FCC to reopen this docket and try again. We now know the kinds of devices that the cellular carriers want to place, and there can be separate rules for placing pizza boxes versus refrigerators on poles. We also now have thousands of examples of the effort required by cities to review and implement small cell requests. A new docket could examine the facts instead of being pushed forward by an imaginary 5G national emergency.
The cellular carriers got everything they wanted, and any regulatory ruling that is this one-sided is almost always a bad one. We now understand that there is no 5G race with China – but we also recognize that cellular carriers have a legitimate need to keep placing small cell sites. It’s time for the FCC to weigh the facts and reissue rules that put a balance between cellular carrier and city interests – because that’s what good regulations are supposed to do.