Tuesday, August 14, 2012

The FCC's Section 706 Report and Wireless Broadband Build-Out

A Maryland county's rejection of a wireless carrier's plan to build a cell tower on private property and improve service coverage was the subject of a prior blog post, "Wireless Tower Construction Is Critical To Maryland's Consumers and Economy." It is essential that local governments perform a more constructive role regarding wireless infrastructure build-out that includes inter-governmental coordination to ensure that public property is made available for new wireless facility placement.

Growing demand for wireless data services has created a pressing need to build new wireless towers to accommodate surging wireless traffic flows. Local consumers and communities stand to benefit from the economic opportunities offered by next-generation wireless networks, including e-commerce, e-health and video applications.

There is also a constructive role for the FCC in removing barriers to infrastructure investment and wireless broadband deployment. The next Section 706 Broadband Progress Report is now being circulated at FCC. That soon-to-be released Report offers the FCC a prime opportunity to address wireless facility siting. FCC adoption of clearer rules and policy regarding federal limits on local government approval processes can help reduce wireless infrastructure permits being improperly denied or delayed.

In Howard County v. T-Mobile the U.S. District Court for the District of Maryland upheld the County Board's rejection of a permit application to build a 100-foot monopole on a church property. The District Court applied a highly deferential standard in reviewing the Board's zoning decision. A local school district's bureaucratic response in turning down T-Mobile's requests to place a tower on school property and the Board's reliance on a burden of extra production of evidence regarding sight distance were deemed sufficient to uphold the Board's ruling.  

Section 332(c) of the Communications Act prohibits local government actions that have "the effect of prohibiting the provision of personal wireless service." Current jurisprudence, however, make it very difficult for wireless carriers to ever gain a favorable ruling under this provision. Federal case precedents offer only general considerations about what constitutes, in practical effect, a prohibition of wireless services. Absent blanket bans on wireless facility siting by local governments, carriers are typically required to establish, among other things, "a legally cognizable deficit in coverage amounting to an effective absence of coverage." In explaining this factor, the District Court cited Fourth Circuit precedent for the proposition that "the record must clearly demonstrate that there is an absence of service in a particular part of the country."

In this case, the District Court concluded that "the record does not clearly demonstrate an absence of service in this area" or a "legally cognizable gap in service" because: (1) T-Mobile already had towers and antennas in the general area; (2) a T-Mobile expert witness testified that the carrier's coverage in the area was unreliable but not "completely lacking"; and (3) T-Mobile's expert catalogued dropped call rates of 5.42%, 6.26%, and 2.68% over three months, exceeding T-Mobile's goal to keep the drop call rate at or below 2%. In light of those dropped call rates District Court concluded "the record does not clearly demonstrate an absence of service in this area."

However, dropped calls are hardly the only wireless service quality issue. Sufficient signal strength and speeds are also necessary for wireless broadband service. And it is particularly important for wireless service providers to deploy infrastructure that meets projected future wireless data traffic demands.

There appears to be a judicial reluctance to further define what constitutes "a legally cognizable deficit in coverage amounting to an effective absence of coverage." For instance, in a Fourth Circuit decision from earlier this year Judge Andre Davis wrote that, "[o]ur review of an effective-prohibition claim might look different if there were properly promulgated FCC regulations setting particular threshold coverage levels subsection (B)(i)(II) entitles a company like T-Mobile to provide." The judicial reticence appears to be based on concerns that the judiciary avoid instilling public policy judgments though its rulings. 

Accordingly, the FCC should take steps to clarify what constitutes an effective prohibition of wireless service by local governments under Section 332(c). And it should do so as part of a broader effort to bring greater specificity to how Section 332(c) applies to all aspects of the local government approval process for wireless facility siting.

The FCC's 2011 Section 706 Broadband Progress Report lamented the apparent lack of access to broadband experienced by more than 20 million Americans. In the Report, the FCC declared that broadband is not being deployed to all Americans in a timely manner. Congress declared that in such circumstances the FCC shall take immediate action to accelerate deployment of advanced communications services such as wireless broadband "by removing barriers to infrastructure investment and by promoting competition in the telecommunications market."

One might criticize the FCC's numbers, starting with the agency's exclusion of 3G wireless networks from its wireless broadband service coverage count. But removing regulatory barriers to infrastructure investment should always be the preferred policy. In any event, if the FCC takes its own declaration about lack of timely deployment seriously it should target wireless facility siting permit approval denials and delays by local governments. After all, the FCC acknowledged in its 2011 Wireless Competition Report that obtaining regulatory approvals from state and local governments is a significant constraint for wireless service providers that need to add or modify wireless facility sites.

The FCC can establish forward-looking threshold coverage levels that take next-generation wireless network capabilities and demands into account. The agency's 2011 Section 706 Report regards 4G networks as setting the present standard for wireless broadband coverage. So it follows that removing barriers to deploying infrastructure should mean calibrating expected coverage levels to next-generation wireless broadband capabilities. Anything less should be considered to amount to "an effective absence of coverage."

The Public Notice issued by the FCC in preparing its forthcoming Section 706 Report solicited public comment to compile a record regarding the local government approval process for wireless tower facilities. So the Report offers a perfect opportunity for the FCC to further spotlight where local government obstruction to investment in wireless infrastructure can be removed.

The Commission's Report should sketch out a basic roadmap for addressing local government denials and delays in approving wireless facility siting. The FCC should follow through with a declaratory order or proposed rulemaking to carry out its duty to remove barriers to wireless infrastructure investment and promote competition in the market.