Tag Archives: small cells

FCC’s $270 pole rental limit for wireless attachments might be “arbitrary and capricious”, appellate judge says

by Steve Blum • , , , ,

Los angeles streetlight cell 1 23oct2019

Federal appeals court judges hearing the challenge brought by local governments to the Federal Communications Commission’s 2018 preemption of ownership and control of street lights tried to get an FCC lawyer to explain how the commission settled on $270 as the allowable annual pole rental limit. The attorney, Scott Noveck, couldn’t oblige judges Jay Bybee and Mary Schroeder…

Bybee: I’d still like you to get to how you get to the $270.

Novek: So your honor, what I believe happened is that the commission took a look at various state small cell bills…

Bybee: It’s interesting, counsel, that you just characterised it as ‘you believe’. Because there isn’t anything in the record that tells us what the commission did, other than look at bills that were pending in a number of states, mostly in the heartland, not on the coast.

Novek: I want to try to answer that, but I just want to say to preface that, that this is just a safe harbor. And this order would have been perfectly reasonable even without any safe harbor at all.

Schroeder: When you say safe harbor, what do you mean? Do you mean that if it’s below that there’s no problem with it?

Novek: So, what I think what the commission was doing here was recognising that there exists a certain level of fees below which the fees are so likely to pass muster, they’re so likely to be within what the actual costs are, that it wouldn’t make sense to be expending resources on litigating those…But nothing at all precludes localities from charging higher fees where their costs are higher.

Bybee: Does the commission have an obligation to explain why it chose $270 as opposed to, let’s say, $250 or $300?

Novek: Well, I do think that at that point you’re in the area of paradigmatic line drawing, where agencies, I think, are at their greatest deference.

Bybee: They could have chosen $200 or $400 – that’s significant, isn’t it?

Novek: Your honor, I don’t think that this was, um, something that we were able to calculate with mathematical precision…

Bybee: You can calculate it with mathematical approximation. I don’t even see the approximation.

Novek: So, what the commission did here…

Bybee: The numbers that are in the bills that the commission relied on…are in the range of about $100. So the $270 appears – I mean, it may be generous for the cities, and maybe it was out of an abundance of caution. I’m just trying to figure out whether they just drew a number out of a hat, which might make it arbitrary and capricious.

The $270 figure originally came from lobbyists for mobile carriers, such as AT&T, Verizon, T-Mobile and Sprint. In 2017, they convinced California lawmakers – whom they and their colleagues influence with millions of dollars in payments – to enact a similar limit, which was vetoed by governor Jerry Brown.

The challenge to the FCC’s 2018 preemption is now in the hands of the three judges from the federal ninth appellate circuit, who heard the case last week in Pasadena. Their decision is likely to come sometime in the next three to six months.

Links to petitions, court documents and background material are here.

FCC’s rural 5G justification for urban wireless preemption is comfort to AT&T but not to Fresno, appeals court told

by Steve Blum • , , , ,

Ninth circuit oral argument pole preemption 10feb2020

Federal appellate judges drilled down into arguments made by local governments and the Federal Communications Commission on Monday, as they considered a challenge to the FCC’s 2018 decision to cap rental rates for locally owned street light poles and other assets in the public right of way, and effectively give mobile carriers unfettered use of public property.

One justification for this preemption of local property ownership was that if big cities with big potential for subscriber revenue charge high fees, then carriers like AT&T and Verizon won’t have money left over to spend in less profitable small cities and rural communities. That prompted a question from judge Jay Bybee about whose rights and whose benefits are being protected…

So the FCC’s theory is that the reason we’re not going to allow costs above a certain level – anything above costs – is prohibited and preempted is because, the theory is, that the carriers could then take that money and invest in rural areas, other cities and so forth.

So if the City of Los Angeles agrees to $400 – the city says it’s $400, it’s our cost – and the carriers all agree, because they’re very anxious to get into Los Angeles immediately, and the City of Fresno comes and says ‘we don’t think it’s above $300’, does the City of Fresno have the right to bring an action, because these carriers are being slow to develop 5G in Fresno?

Joseph Van Eaton, with the Best, Best and Krieger law firm, which represents many cities in California and elsewhere, replied…

No, in fact that’s one of the flaws, the basic flaw in this whole cross subsidy argument, because that’s what this really is, that carriers will take money saved in Los Angeles and invest it in an area that’s not now profitable.

There’s no economic theory that supports that idea. The whole universal service fund is based on the idea that a rational investor will make money where they can make money and then they don’t take good money and pour it into an area where it’s not profitable out of the goodness of their hearts. That’s why we actually have evidence where Lincoln, Nebraska dropped the fee to $95 and said ‘all you have to do is build out these less profitable areas’ and they got no takers.

There’s no evidence that cross subsidy actually results in the impacts, effects the FCC has, and certainly the FCC doesn’t require it, and it doesn’t give anyone any enforceable right to say ’if you’re saving money in LA, you gotta come to our community".

All three judges asked questions of both the FCC and local government challengers during the hearing in Pasadena. Conventional wisdom is that questions asked aren’t a good guide to what judges are thinking – they might be sceptical, or they might be floating conclusions that they’re leaning towards. We’ll have to wait for them to issue their ruling, which is probably three to six months away.

Links to petitions, court documents and background material are here.

FCC tells appeals court if electric or cable companies can install “larger, uglier, blighted” equipment on poles, then wireless carriers can too

by Steve Blum • , , , ,

Small cell olympic blvd 22oct2019

The Federal Communications Commission defended its 2018 preemption of local property ownership and permitting authority in front of a panel of three federal appeals court judges in Pasadena yesterday. Its lawyers faced some pointed questions from the judges.

FCC attorney Scott Noveck tried to dance around the reality of the FCC’s preemption order and claim that it really wasn’t doing much at all, particularly in regards to limits on the aesthetic requirements that cities can impose on wireless facilities. Judge Daniel Bress didn’t seem convinced…

Bress: The other side has raised this point, that when you just compare the standards – the one in the small cell order as compared to the one in the statute – there’s some possible misalignment, right, where it says no more burdensome, which would suggest parity, whereas the statute suggests actually there’s some amount of discrimination that would be allowed?"

Noveck: I think the order suggests parity among similarly situated infrastructure, which I think brings those into alignment.

Bress: What does that mean?

Noveck: Well, so for instance, the problem we have here sometimes, you have times when you have, say, cable equipment or electrical equipment, and what the record shows is that in many localities they were imposing very burdensome requirements on wireless equipment that might be smaller and less, um, more unobtrusive than similar equipment you might see on a utility pole or on a pole that was being used to provide cable service, was being used to provide electrical service but, for whatever reasons, localities were subjecting the wireless carriers to far more onerous requirements. So the non-discrimination principle here is just saying that if you are claiming that small cells need to meet some burdensome aesthetic requirements, but you’re allowing other utilities to put larger, uglier, blighted infrastructure on the same poles, it’s hard to think that this is a legitimate aesthetic requirement you’re imposing.

Noveck was trying to create a false equivalence between electrical equipment, such as transformers, that are installed on utility poles, which are often placed as far out of view as practicable, and wireless equipment placed on street light poles which, by their very nature, are placed where everyone can see them. Bress didn’t seem convinced, but that’s not necessarily his thinking – appeals court judges are notoriously (and properly) hard to read. All we can do now is wait for a ruling. There’s no particular timeline for that, but three to six months is typical.

Links to petitions, court documents and background material are here.

Game on today, as cities take on FCC in court over pole ownership preemption

by Steve Blum • , , , ,

Downtown salinas

Local ownership of street light poles and other facilities planted in the public right of way is at stake, as lawyers for dozens of cities and counties and the Federal Communications Commission square off in a Pasadena court room later this morning.

A panel of three federal appellate court judges will hear arguments about why, or why not, the FCC has the authority to tell local agencies how much they can charge mobile carriers to attach equipment to their poles, and to largely replace negotiated rental contracts with simple, non-discretionary permits. Other issues, such as access to utility poles (which fall under different laws and regulations) and road maintenance policies that prohibit digging when the danger of freeze/thaw damage is greatest, will also be taken up.

In 2018, the FCC capped the rental rate that cities can charge wireless companies for pole attachments at $270 per year. That’s in contrast to negotiated market rate deals that often top $1,000 per year and sometimes go much higher.

If they prevail, the FCC’s republican majority is ready to double down on preemptions of state and local authority over right of way management and permits for wireless facilities. At the CES show in Las Vegas last month, republican commissioner Michael O’Rielly was defiant. He said local control is “problematic” and the FCC’s response “does come with the P-word…it requires preemption. And that is something the commission is going to have to continue to do”.

Another federal appeals court, based in Washington, D.C., might have made O’Rielly’s dream less likely. In a decision that otherwise upheld the FCC’s repeal of network neutrality rules, the judges ruled that the commission overstepped its authority when it tried to preempt any and all regulation of broadband service by states. If the FCC wants to big foot state governments, it has to wait until there’s an actual regulation to preempt, and then come up with a specific basis for doing it.

FCC promises more of the “P-word” – preemption – in 2020

by Steve Blum • , , , ,

Line to see pai ces 7jan2020

Due to the nature of the program, you’re going to have to go through metal detectors.
CTA staffer to long queue waiting to see Ajit Pai.

Ajit Pai made his first appearance at CES as chairman of the Federal Communications Commission yesterday, sitting down for a talk about the coming year with Gary Shapiro, the CEO of the show’s organiser, the Consumer Technology Association. Much of the conversation was about 5G infrastructure, and the public policy that surrounds it.

More preemptions of local and state authority over wireless sites, utility poles and the use of the public right of way are on the FCC’s agenda. Pai reiterated his belief that wireless policy should be made at the federal level, including policy that’s traditionally in the hands of states and local governments.

“We want to see a consistent, easy to understand set of regulations that anyone can innovate around”, Pai said. Mobile carriers and infrastructure companies want “a consistent level of regulation” as they build out 5G networks. Which means rules should be set by the FCC and not state legislatures or city councils. Pai intends to “encourage” state and local governments to approve permit applications small cell sites and other wireless facilities. “Multiple layers of government” are “not conducive to infrastructure investment”, he said.

His wingmen in the FCC republican majority echoed his comments. Commissioners Michael O’Rielly and Brendan Carr, along with democratic commissioner Geoffrey Starks, took part in a panel discussion later in the afternoon at the Las Vegas show. O’Rielly put it bluntly…

It’s not just small cells. It’s going to mean more macro towers. That means dealing with difficult issues on placement when states and localities want to either extract too much money or try to dictate what services will be offered. That’s problematic and I’ve been talking about this for a long time. It does come with the P-word, which is – it requires preemption. And that is something the commission is going to have to continue to do.

Cities and counties should expect more “bold actions”, as Carr put it, from the FCC.

February oral arguments set for appeal of FCC pole ownership preemption

by Steve Blum • , , , ,

Los angeles streetlight cell 1 23oct2019

We might know by next summer if local governments will be able to lease public property, such as street lights, at fair market rates to private wireless companies, or whether those rates will be capped at $270 per pole per year.

The challenge by cities and counties to the Federal Communications Commission’s preemption of local ownership of public assets in the public right of way, and control of the public right of way itself, will be heard in Pasadena in February. The San Francisco-based ninth circuit court of appeals scheduled oral arguments for 10 February 2020. The judge-shopping appeals filed by mobile carriers will be heard at the same time.

It should be possible to watch the arguments live via the ninth circuit’s website or watch a recording later.

There’s no particular deadline for a decision by the ninth circuit, but three to six months would be a reasonable guess. So maybe in the May to August time frame?

The ninth circuit is allowing a total of eighty minutes for arguments. Cities and counties will get 20 minutes to make their case. Often, allocated time is eaten up by questions from the judges. The FCC will have 20 minutes to defend its ruling, then mobile carriers get their turn and the FCC has another 20 minutes to respond.

One question that won’t be answered until shortly before the hearing is who is hearing it? The ninth circuit will choose a panel of three appellate judges, which might include some on temporary duty, to listen to arguments and decide the case among themselves. Usually, that ends up being the final decision, although appeals the losing side can ask that it be reviewed by all the judges assigned to the ninth circuit, and/or appeal to the federal supreme court. But historically, fewer than 1% of the ninth circuit’s rulings are taken up by the supreme court.

Samsung’s 5G small cell in a box solves aesthetics problems, for some people and some applications

by Steve Blum • , , ,

Samsung 5g 28ghz unit 22oct2019

The most interesting thing on the exhibit floor at the Mobile World Congress trade show in Los Angeles might have been the dullest. Because it was so dull.

Samsung introduced a 28 GHz 5G small cell unit that packs antennas and electronics into a small, anonymous box that can be strapped to, say, a streetlight pole. According to a Samsung rep at the show, Verizon has already signed up to buy it.

As small cell facilities go, the box is tiny – two-thirds of a cubic foot, or about the size and shape of a toolbox. Something like half the volume is taken up by cooling fins, which are shrouded from view on three sides. The cellular antennas and radio gear are packed into the remaining space, with only a silver dollar sized GPS antenna poking out of the top. Samsung’s reps said installing it is as easy as bolting it to a pole and plugging in electric and fiber optic cables.

Keep in mind, though, what it is and what it isn’t.

It is a high bandwidth, millimeter wave cell site that meets 5G specs in a small package (Samsung claims it can deliver broadband at 10 gigabits per second). Presuming it works as advertised, it’s a solution for a particular set of circumstances.

It isn’t a revolution in small cell engineering or solution that’ll work in all, or even most, circumstances. The frequency band it’s designed for – 28 MHz – is just one of many that mobile carriers use. Most are lower frequency bands that require bigger antennas – millimeter waves use millimeter antennas, which makes it easier to cram everything into one box. Different bands and applications can also have different power requirements. A small cell site designed for another band will probably look different. Particularly if it’s intended to serve 4G as well as 5G customers, which this Samsung unit isn’t.

Even so, Samsung’s fully integrated small cell unit is an important benchmark for the industry. Making small cells smaller and duller will go a long way toward overcoming aesthetic objections and meeting mechanical design standards. The more small cells look like the photo above, and the less they look like the photo below, the easier everyone’s job will be.

Small cell olympic blvd 22oct2019

Federal court fast not-so-slow tracks appeals of FCC’s preemption of local pole ownership

by Steve Blum • , , , ,

The good news is that the appeal of the Federal Communications Commission’s preemption of local ownership of streetlight poles will be fast tracked. The not so good news – which isn’t exactly news to people who follow such things – is that fast is a relative term.

An order issued yesterday by the ninth circuit federal appellate court in San Francisco granted a request “to expedite oral argument” in the case, made by dozens of local governments. What that means is that the court is looking at “dates for February 2020 and the two subsequent…months” for those arguments to happen.

The judges hearing the case will also have to decide whether to handle everything at once, or break it up into more manageable bits. The primary case involves two decisions made by the FCC last year, both dealing with the way state and local governments manage access to roads and anything else considered to be the public right of way, and the degree of ownership control they can exercise over structures, such as light poles or traffic signals, they install there. One decision dealt mostly with deployment of wireline telecoms infrastructure, the other with wireless facilities.

One issue that’s particular to municipal electric utilities – whether federal law allows the FCC to regulate their utility poles – was separated out earlier. The cities and counties litigating the main case asked for arguments for and against one touch make ready rules for privately-owned utilities to be heard separately. Yesterday’s order said the three judge panel will sort that out later.

Assuming that oral arguments happen sometime between February and April, and the judges issue a decision in a three to six month time frame (typical, but it could be longer or shorter), then we won’t know if the FCC’s decisions will stand until this time next year. That’ll add to the uncertainty faced by cities as they try to manage the expected avalanche of permit applications for small cell facilities and associated fiber optic installations.

Cities ask federal court to speed up review of pole ownership preemption, FCC says keep it slow

by Steve Blum • , , , ,

La small cell

Local governments from around the U.S. asked the federal appeals court in San Francisco to speed up consideration of their challenge to the Federal Communications Commission preemption of local ownership and control of the public right of way and assets located in it, such as street light poles and traffic signals.

In a motion filed last month, they told judges that on the one hand, disputes are piling up, and on the other, the FCC is aggressively pushing ahead…

First, there are several other cases progressing through the lower courts that will be affected by the outcome of this appeal…Delay in resolution will simply complicate the work of district courts and Circuit Courts of Appeal throughout the country, as more applications are filed and more disputes arise.

Second, this appeal is a matter of great importance to virtually every locality in the nation. While this appeal is pending, Local Government Petitioners and Supporting Intervenors and similarly situated parties are confronted with uncertainty as to how to develop and apply local standards for small cell deployment, which is rapidly occurring…

Third, the Commission is not waiting for this Court to decide the validity of the Orders challenged on appeal. In fact, the Commission is currently building on those Orders, which makes possibly unwinding them all the more difficult.

The FCC opposes anything that would speed up what increasingly looks like a case it will lose. Its response says, in effect, there’s no reason to hurry, because any problems that are created can be fixed later. That was the gist of a ruling earlier this year by federal appellate judges in Denver, just before they handed everything off to their colleagues in San Francisco.

That’s a line of argument that might apply equally well to the FCC’s preemption orders, which also set tight deadlines for action on permit applications filed with local government by telecoms companies.

Net neutrality ruling sinks FCC local pole ownership preemption theory

by Steve Blum • , , , ,

Although a federal appeals court in Washington, D.C. blessed the Federal Communication Commission’s “2018 Order” repealing network neutrality rules, the judges hearing the case overturned one section that tried to preempt any effort by state or local governments to step into the gap. If the plain language of Tuesday’s opinion is also applied to the FCC’s attempt to preempt local ownership and control of street light poles and other publicly owned assets located in the public right of way, then it’s a slam dunk bet that it’ll be overturned too.

Last year, the FCC issued two far reaching decisions preempting nearly all state and local authority over construction of broadband infrastructure, one dealing with small cell sites and the other dealing primarily with wireline projects. It claimed the authority to do so based on an expansive interpretation of federal communications law that boiled down to we’re in charge of national broadband policy, so what we say goes for everyone.

“No dice”, said the D.C. appeals court. Its opinion made two particular points: 1. congress never gave the FCC the necessary authority to occupy policy territory that legally belongs to states, and 2. if the FCC wants to exercise the authority it does have, it has to do so case by case, by the evidence…

Not only is the Commission lacking in its own statutory authority to preempt, but its effort to kick the States out of intrastate broadband regulation also overlooks the Communications Act’s vision of dual federal-state authority and cooperation in this area specifically. Even the 2018 Order itself acknowledges the States’ central role in “policing such matters as fraud, taxation, and general commercial dealings…remedying violations of a wide variety of general state laws,” and “enforcing fair business practices” — categories to which broadband regulation is inextricably connected…

We have long recognized that “whether a state regulation unavoidably conflicts with national interests is an issue incapable of resolution in the abstract,” let alone in gross…

Because a conflict-preemption analysis “involves fact-intensive inquiries,” it “mandates deferral of review until an actual preemption of a specific state regulation occurs.” Without the facts of any alleged conflict before us, we cannot begin to make a conflict-preemption assessment in this case, let alone a categorical determination that any and all forms of state regulation of intrastate broadband would inevitably conflict with the 2018 Order.

The ninth circuit federal appellate court in San Francisco is hearing the challenges to the FCC’s blanket preemption of local and state authority over right of ways and public property. It’s not obligated to follow the D.C. circuit’s opinion, but given that it has a history of being even more skeptical of federal agency supremacy than its Washington colleagues, it’s heavy odds that it will.