Tag Archives: wireless

Sneak peek at FCC’s pending preemption of local wireless reviews?


Some poles are history.

The Federal Communications Commission might have given us a preview of what its intended preemption of state and local discretion over wireless sites will look like. Later this month, commissioners will vote on whether or not to exempt replacement utility poles, that are used to support new wireless facilities, from historical preservation reviews. At the top level, it’s about extending an existing historical review exemption for towers to utility poles that aren’t presently supporting wireless equipment. (As a practical matter, pretty much any pole that’s being used for wireless purposes already qualifies as a tower).

But it isn’t much of a leap to read the narrow language regarding historical reviews, and imagine it being turned into the basis for a general preemption of state and local laws…

Small cell antennas are much smaller and less obtrusive than traditional antennas mounted on macro cell towers, but a far larger number of them will be needed to accomplish the network densification that providers need, both in order to satisfy the exploding consumer demand for wireless data for existing services and in order to implement advanced technologies such as 5G. We find that excluding the pole replacements at issue here from review under [historical preservation regulations] will allow providers to complete these deployments more efficiently. In addition, creating an exclusion for replacement of utility poles will promote consistency between the process that carriers and pole constructors must follow to comply with our historic preservation review requirements and those they must follow when building replacement poles that are subject to the requirements of other agencies applying [rules regarding federal lands].

Under the terms of the draft FCC order, if replacement poles aren’t of historical interest themselves and are “situated in the same hole as the original pole, are no more than 10 percent taller than the original pole, and are consistent with the quality and appearance of the original pole”, they will be exempt from historical preservation requirements. For now, the FCC isn’t extending another exemption criteria – “20 feet plus the height of an antenna array” – to replacement poles, but only because of the potential impact on historical sites.

This effort at the FCC is separate from a push in the U.S. senate to effectively wipe out local government property rights and strictly limit permit authority regarding poles and other vertical assets targeted by wireless companies.

Any bets on how the FCC’s general preemption of wireless site reviews will eventually read?

FCC commissioner signals more preemption of state, local wireless review

Well that didn’t take long. Just a couple of working days after a pair of U.S. senators introduced a modest and sane bill to streamline federal permitting for wireless projects – S–1988, aka the Speed Act – there’s a call to double down and go after state and local approval processes too. Except it’s not from a lobbyist or trade association that wants to add perks to the bill.

It’s from someone who already has the authority to big foot state and local authority at will, at least if he can convince a couple of his colleagues to go along with it. Commissioner Michael O’Rielly, one of the three republicans who form the majority on the Federal Communications Commission, released a statement yesterday that makes it clear that he’s ready to move, full speed ahead…

I applaud Senators Wicker and Cortez Masto for introducing the SPEED Act. This bipartisan effort to ease and accelerate the deployment of broadband technology would put an end to some of the excessive delays industry experiences when siting facilities. While this is a helpful first step, it reaffirms my belief that preemption is necessary to prevent unnecessary and costly barriers to small cell deployment.

Just to be clear, what Wicker (R – Mississippi) and Cortez Masto (D – Nevada) are proposing isn’t preemption. They are federal lawmakers who are proposing a change to the way that federal agencies enforce federal environmental and historical standards. That’s their job.

The Speed Act would have a greater impact in states that rely on federal rules as default policy, but that’s a choice policymakers in those states have made and they’re free to change their minds at any time. Here in California, the California Environmental Quality Act (CEQA) generally governs. It has serious problems – even Jerry Brown once said that to reform CEQA is to do “the Lord’s work” – but fixing it is our job, not DC’s.

The FCC has a proceeding underway that began life tilted toward the presumption that state and local governments would face further preemption of wireless siting discretion. O’Rielly is signalling that the tilt has turned into a dive.

The hunt is on for a “balanced solution” to preemption of local wireless discretion

Preemption of municipal ownership of street lights and other vertical infrastructure failed in Sacramento this year because of overreach, not because there’s fundamental opposition to the concept. Mobile carriers and other telecoms companies will deploy bus loads of lobbyists armed with bags of cash sincerely worded nonsense arguments to push it through again next year.

The California legislature approved senate bill 649 by a slim, but sufficient, margin. Governor Jerry Brown finally nixed it, but said in his veto message that “there is something of real value in having a process that results in extending this innovative technology rapidly and efficiently”.

It’ll be back. The question is what will it look like?

One clue comes from a senate committee hearing this past May. After flying through the senate energy, utilities and communications committee – chaired by the bill’s author, Ben Hueso (D – San Diego) – SB 649 landed in the governance and finance committee. It’s supposed to look after concerns of local governments, and at least some senators – Mike McGuire (D – Sonoma County) chief among them – took that responsibility seriously.

A somewhat less one-sided version was negotiated with lobbyists for mobile carriers, and then approved by the governance and finance committee. It wasn’t enough to bring city and county associations on board, but it does offer a clue as to what might qualify as the “more balanced solution” Brown wants. One key provision allowed local agencies to charge $850 a year for wireless equipment attachments to street lights, traffic signals and other vertical assets, instead of the $250 annual lease payment that was eventually approved.

In some Californian cities, $850 would still be below market rates, but statewide it wouldn’t be the complete gift to wireless companies that SB 649 eventually became. Combined with more generous allowances for cities and counties to hold particular assets off the market for their own reasons, it might be just enough tip the balance.

Wireless lobbyists will keep swinging in the California legislature

By Fcb981 (Own work) [GFDL (https://www.gnu.org/copyleft/fdl.html) or CC-BY-SA-3.0 (https://creativecommons.org/licenses/by-sa/3.0/)], via Wikimedia Commons

Senate bill 649 is dead, following a late night veto by California governor Jerry Brown. In his veto message, he was sympathetic to the needs of mobile carriers and other wireless providers, but called for a better balance with the interests local governments have in managing the public right of way.

Translation: try again next year, with something that’s not quite so one-sided.

It’s a sure bet that wireless carriers and their lobbying fronts will be back, along with cable companies, wireline telcos and their lobbyists looking for their slice of the bacon. It won’t be hard to find a biddable legislator – several come to mind – who will simply regurgitate whatever nonsense he’s given. Or she, but so far it’s been the guys who have carried the major local preemption bills at the behest of wireless carriers.

This year it was Ben Hueso (D – San Diego), the chair of the senate energy, utilities and communication committee, who “authored” SB 649, and vigorously, if not always coherently, defended it.

Last year it was assemblyman Mike Gatto (D – Los Angeles), likewise chair of a key committee – what was then the assembly utilities and commerce committee. He waited until the middle of the session to gut and amend an unrelated bill – AB 2788 – and turn it into something that looked a lot like what SB 649 became. Gatto didn’t have the mojo to get it passed; AB 2788 withered away in the senate without a vote.

In 2015, assemblyman Bill Quirk carried AB 57, which rolled back local discretion over wireless siting, and put deemed approved teeth into federal “shot clocks”. It was signed into law by Brown, and now cities and counties have three to five months to approve wireless site applications, with some allowance for brief pauses. Otherwise, those applications are automatically granted. Quirk was also a principal co-author of SB 649 and successfully carried AB 1145 this year. That bill gave cable companies access to public money usually reserved for public utilities, but without the corresponding obligations.

Gatto left the legislature last year, but is considered likely to be running for something next year, perhaps a statewide office. Hueso and Quirk will be back, though.

Google Fiber gives up on video, and maybe fiber too

Google Fiber is throwing in towel on video service. In a blog post, the company announced that it won’t be offering a cable-like lineup of television channels along with gigabit Internet service in Louisville and San Antonio…

We’re trying something new in our next two Fiber cities. When we begin serving customers in Louisville and San Antonio, we’ll focus on providing superfast Internet – and the endless content possibilities that creates – without the traditional TV add on.

If you’ve been reading the business news lately, you know that more and more people are moving away from traditional methods of viewing television content. Customers today want to control what, where, when, and how they get content. They want to do it their way, and we want to help them.

Two years ago, a top Google Fiber executive, Milo Medin, said “if you don’t offer a good TV service your ability to compete with incumbents that bundle Internet and TV together is significantly impaired”.

So, what changed? A couple of things.

It’s certainly true that the availability of unbundled video content available directly via the Internet has grown considerably in the past two years, and there’s no sign of it slowing down. Declaring linear video subscriptions to be a legacy business and letting cable and satellite companies wrestle over its (slowly) dwindling remains simplifies Google Fiber’s operations and business model, and eliminates a lot of headaches. That alone could be a good trade for the potential subscribers they might lose as a result.

But something else changed, too. In the past two years, Google Fiber has become, in effect, Google Fiber and Wireless. Technically, it’s easy to add a hundred or two TV channels to a fiber-based service, but impossible on a terrestrial wireless system that has orders of magnitude less total bandwidth available. Google’s announcement should also be treated as another indicator that in the future the company is going to be even more selective about where it builds fiber to the home infrastructure. If it even installs any more fiber at all.

California legislature to grant redlining absolution to mobile industry

Mobile carriers don’t redline neighborhoods or communities on the basis of income levels. That declaration is the latest present to go under the Senate Bill 649 christmas tree as it nears a final decision in the state legislature. The primary aim of the bill is to give wireless companies open access to street light poles and other “vertical infrastructure” owned by cities and counties in California, at below market rates.

New language tightening up definitions was added to SB 649 in preparation for a floor vote by the California assembly. Some of the bill’s benefits will only be available to licensed mobile carriers, rather than any wireless Internet service provider that comes along, and it further narrows the ability of local governments to restrict cell site construction on aesthetic grounds.

To justify these gifts to the mobile industry, lawmakers included language praising mobile carriers…

The Legislature further finds and declares that wireless service providers deploy small cells to areas based on demand for services regardless of the income characteristics of the areas, that this act will complement efforts to close the digital divide by creating a framework that will incentivize private industry to invest or accelerate investment in the deployment of small cells, and that this act will complement current state and federal government efforts to subsidize the deployment of broadband.

There are a couple of problems with this statement. It’s microeconomic nonsense to say that demand isn’t connected to income levels. So if lower income levels lead to lower demand in a given area, then mobile carriers won’t improve service: less income = less demand = less infrastructure investment.

It also ignores the fact that, in addition to being a mobile carrier, AT&T is also by far the largest traditional telco in California and, according to a U.C. Berkeley study, it does redline wireline customers in poorer communities. AT&T’s solution is to replace ageing wireline networks with low capacity wireless systems, while upgrading to fiber in high potential neighborhoods. That will be a digital divide that the California legislature will never be able to close, even if it wanted to try.

Cable industry snags a side deal in California legislature’s wireless giveaway

Another present was placed under the senate bill 649 Christmas tree this week. Language was added that would make it crystal clear that local governments in California can’t require cable companies to pay any fees or obtain any permits, beyond what’s allowed by state law, including particularly the digital infrastructure and video competition act (DIVCA) and SB 649.

It will probably have a relatively minor impact, assuming it’s not interpreted to ban routine construction approvals – building and encroachment permits, for example – which seems unlikely. The major effect will be to definitively squash a few, ongoing local attempts to get around existing restrictions on cable service fees.

According to the bill’s preamble…

This bill would prohibit a city or county from requiring a provider of video service or cable service to obtain any authorization or permit not described above to provide any communications service that is provided by a holder of a state franchise pursuant to [DIVCA]. The bill would prohibit a city or county from requiring the holder of a state franchise to pay any tax, fee, assessment, or other charge not authorized by [DIVCA], this bill, or other state laws.

This new perk for cable companies doesn’t have much, if anything, to do with the core purpose of SB 649, which is aimed at giving wireless companies on-demand access to light poles and other vertical assets owned by cities and counties at below market rates. But now Charter, Comcast and the rest don’t have to feel left out. Their lobbying front organisation in Sacramento – the California Cable and Telecommunications Association – had been raising vague objections to the bill. On the face of it, this small gift seems to a way to make sure they don’t feel left out of a massive giveaway to their colleagues in the wireless end of the business.

In reality, though, the cable industry will see direct benefits from SB 649’s wireless access provisions. Comcast is already rolling out wireless Internet of Things services and, along with Charter, are sniffing around other corners of the industry.

SB 649 has had an easy ride through the senate and, so far, the assembly. The next stop will be the assembly appropriations committee, which will likely put it on hold, until its ultimate fate is decided by legislative leaders in the final days of the legislature’s current session.

Another green light for preemption of local light poles in California assembly

The language has been tidied up a bit, but a bill snaking its way through the California legislature would still give wireless companies the right to install equipment on light poles, buildings and other vertical infrastructure owned by cities pretty much at will, for a nominal, below market rate fee. Senate bill 649 was blessed by the assembly’s local government committee on a 6 to 2 vote, with one abstention, and sent on to the communications and conveyances committee, where the assumption is that it will find an even warmer welcome.

Wireless companies and a long list of organisations that get money from them have registered support for SB 649. On the other side are local governments who argue that

SB 649 forces local government to rent space for small cells on public property at rates far below fair market value and requires that every jurisdiction, in order to use its own public property, provide ‘substantial evidence’ that the space is needed by that community. Rents from the use of public property, which every other for-profit business pays, help defray the cost of essential public services that are otherwise provided at taxpayer expense. SB 649 sets a dangerous precedent for other private industries to seek similar treatment, further eroding the ability to fund local services.

SB 649 proposes to calculate the maximum rate for these non-consensual leases using a formula designed only for electricity and telephone poles – a limited category of installations, with fairly uniform features and costs. Application of this formula to the vast variety of ‘vertical infrastructure’ covered by SB 649 is both unfair and uncertain. The capital and operational cost components for these facilities vary widely in both complexity and amount, and (this formula is) virtually certain to result in continual disputes and confusion statewide.

The bill would also sharply limit local discretion over wireless facilities installed in the public right of way, or in commercial or industrial areas. It’s spun as a small cell-only bill, but the allowance for antennas and other equipment – mounted both on poles and on the ground – is generous enough to accomodate fairly large installations.

Bill preempting local control of cell permits, light poles amended in California assembly

The language has been tweaked and a new formula added for setting rental rates, but the basic principle remains: California senate bill 649 would give mobile carriers and other wireless broadband providers – licensed or not – on-demand access to city and county owned vertical assets in the public right of way at below-market rates, and take away much of the discretion local governments have over where and how wireless telecoms facilities are built.

Although the bill generally applies to "small cells", the definition it uses – 27 cubic feet of stuff on a pole plus 35 cubic feet of gear on the ground, plus electric meters and switches – is big enough to include most modern wireless installations. There’s also language in it now that applies to any telecoms equipment: “a city or county may not adopt or enforce any regulation on the placement or operation of communications facilities”.

SB 649 is in the California assembly, where it’s due for a hearing in front of the local government committee on Wednesday. One of the more controversial provisions is gone. Language that limited local permits to the administrative variety has been removed. That means that local governments could exercise a bit more control than previous versions would have allowed, but only a bit. Other severe restrictions remain.

The compensation formula for leasing space on municipal infrastructure in the public right of way, such as light poles, has changed again. Instead of a cap of $850 per year, local governments could charge a flat $250 administration fee plus a share of the costs of owning and maintaining a pole. It’s hard to know at this point what that means in dollar terms, but it’s not likely to be a much different result than would have been allowed under the previous version. The legislation would, in effect, give a subsidy to mobile and other wireless companies by charging them less than fair market value for the use of publicly owned assets.

Wednesday’s hearing is probably the last, best chance for Californian cities and counties to kill SB 649, as they tried unsuccessfully to do in the senate. The local government committee is likely to pay more attention to their concerns than the assembly communications and conveyences committee, which so far this year has been more accommodating to telecoms industry interests.

California cities meet wave of mobile carrier land grabs

I’ve been involved in several meetings between mobile infrastructure companies and staff from various California cities over the past couple of months. There’s a new gold rush going on now. And mobile carriers – Verizon, AT&T, T-Mobile and Sprint – are running around trying to do deals with cities ahead of 5G and pre-5G network upgrades. They want to put “small cells” on street lights and other city-owned vertical assets. Deals which might be preempted in their favor by SB 649 anyway.

What they want is to lock up real estate years ahead of actual construction. The networks won’t be fully built for 10 to 20 years, but if they can claim vertical assets, right of way and other prime locations now, they’ll be in a controlling position in any given city for a couple of decades.

5G networks rely on lots of small, short-range cell sites. Short range means you can have a lot more cells in a given area, which means the radio frequency bandwidth (also known as spectrum) can be re-used over and over.

For example, suppose you had one big cell tower that covered an entire city, which used all the spectrum a carrier has, and that amount of spectrum had a total capacity of 300 Mbps (e.g. you might have 300 people each watching their own 1 Mbps video stream at the same time). Then you replace it with 100 small cells, each with a 100 Mbps capacity and arranged so that the particular frequencies each uses doesn’t interfere or overlap with its neighbor.

All of a sudden you’ve gone from 300 Mbps total city capacity to 10,000 Mbps. That’s a too-simple example, but the principle applies.

There is no 5G technology standard currently, although there might be by the end of the year. Even so, it’ll be three to five years before the equipment is developed and proven, and then put into mass production and deployed on a large scale. In the meantime, these companies are trying to lay a claim to lots of sites for later, while using a few now that rely on current 4G technology (although they play egregious word games with that).

It’s a good idea for cities to work with mobile carriers and infrastructure companies, but it’s essential to do it in a way that creates a level playing field for everyone – incumbent mobile carriers and their vendors as well as the new ventures and technologies that are on the way – and doesn’t allow one player to lock up street lights, right of way and other real estate they won’t use for years. Given the level of local preemption activity going on in Sacramento and Washington, it makes sense for local governments to use the leverage they have while they have it.