Sunday, February 02, 2014

Calling for Fast Action on FCC’s Wireless Infrastructure Proposal

Thanks to the recent holiday season, tablet devices saw continued, explosive growth. CNET reports nearly 77 million iPads, Kindles and other tablets shipped in the last quarter of 2013 alone. And the more than 217 million tablets that shipped in 2013 marked a more than 50 percent annual increase. These tablet numbers have significant implications for wireless. As Cisco predicted in its Global Mobile Data Traffic Forecast Update, 2012–2017, "[t]he amount of mobile data traffic generated by tablets in 2017 (1.3 exabytes per month) will be 1.5 times higher than the total amount of global mobile data traffic in 2012 (885 petabytes per month). Cisco forecasted that “[g]lobal mobile data traffic will increase 13-fold between 2012 and 2017.”

How will the U.S. economy meet the mobile data demand multiplier effects of tablets, smartphones, and the Internet-of-things? The answer to that question depends, in no small part, on adopting policies to reduce regulatory barriers to investment in new infrastructure needed to carry exponentially growing data traffic. 

In its Wireless Competition Reports, the FCC has identified local government permit processing as the significant regulatory constraint faced by wireless infrastructure providers that need to add or modify cell sites. Right now the FCC has prime opportunity to better ensure the future competitive standing of the U.S. economy and to promote welfare of American wireless consumers by reducing that constraint.
The FCC is taking public comments today on its rulemaking proposal to promote market investment in wireless broadband infrastructure. The Commission seeks to reduce the cost and delay to wireless infrastructure providers that results from both federal and local regulatory approval processes. Reducing those burdens and establishing clearer and more expeditious permitting processes would encourage more rapid and less expensive deployment of infrastructure technologies that support wireless broadband services. This would mean better service quality options for wireless services and, potentially, reduced prices.
Wireless infrastructure providers shoulder unnecessary environmental regulatory burdens in deploying distributed antenna systems (DAS), small cells, and temporary towers. Wisely, the FCC is seeking to reduce some of those burdens.
With regard to DAS or other small-scale wireless technologies that have little or no discernable environmental impact, the FCC should expedite its environmental review process. And temporary cell towers that involve little to no excavation or light and that are of limited height and duration deserve to be free from FCC pre-construction environmental notice requirements.
Section 706 of the Communications Act charges the FCC to “remove barriers to infrastructure investment.” Unnecessary environmental regulations regarding small-scale wireless technologies and temporary towers are precisely the kinds of barriers Congress tasked the Commission to remove. Here the Commission should grant the relief it has proposed – and do so on an accelerated basis.
Wireless infrastructure providers seeking to collocate antennas on existing cell sites or to construct new towers or base stations have also been mired in costly and lengthy processes at the local level. But the FCC is taking positive steps to address such problems. The Commission is now proposing to clarify the standards by which local governments process and approve collocation and siting applications. 
Section 6409(a)(1), enacted as part of the Spectrum Act, provides that a local government “may not deny, and shall approve,” a modification to an existing tower or base station that “does not substantially change” its physical dimensions. Collocating an additional antenna on an existing site typically results in little or no change. So the FCC should adopt a shorter clock for a local government to decide on whether to accept or reject an application. In particular, the Commission should reduce the 90-day period that the Wireless Bureau currently presumes to be a reasonable time to consider collocation applications. A 60- or 45-day window is time enough, given the nature of the applications. And even then a local government that claims it is unable to review a particular collocation application would have opportunity to rebut that presumption with case-specific evidence before a court of law.
There is evidence that local governments have delayed decision-making on collocation and new siting applications by claiming that applications are “incomplete.” In some instances, local governments have instead put off any decision by issuing repeated requests for extra information from wireless infrastructure providers. Current FCC rules toll the time period in which local governments must act on collocation or new siting applications if, within 30 days of the application’s filing, the local government provides notice that specific information is needed to complete the application. The Commission should shore up the current rules to prohibit administrative abuse of the applications process.
Among other things, the FCC should consider limiting the tolling of the timeframe for local government action on applications to one request for specific, additional information. Suppose a wireless infrastructure provider offers information in response to a local government request but the local government again maintains the application is incomplete. The local government could simply deny the application, within the specified time period, on that basis. A court of law could then consider whether the application is complete or the local government acted arbitrarily. The FCC could provide that a judicial finding of arbitrary denial of a collocation or new siting application involving application completion results in such an application being deemed granted by operation of law.
A “deemed granted” remedy would finally put teeth to the FCC's rules for timely decisionmaking on collocation and new site applications. Indeed, the Commission should also spell out that failure of local governments to act on collocation or new siting applications within specified timeframes should result in applications being deemed granted by operation of law. Such finality would effectively counteract any incentives for local governments to put off having to decide whether to accept or reject applications.
In addition to addressing local government obstinacy, a “deemed granted” remedy could also avoid lengthy and equally expensive lawsuits. Litigation over individual wireless tower siting applications ranges from several months to a handful of years to resolve. In the meantime, financial resources that could be going into infrastructure instead go to lawyers, consultants, and others involved in the litigation. And a lack of new wireless infrastructure leaves consumers without upgraded wireless broadband services.
By clarifying and tightening its procedural rules regarding collocation and new siting applications, the FCC can tackle costly administrative delay problems. At the same time, it can leave to local governments the authority to decide whether or not such applications satisfy substantive standards.
Building and upgrading thousands of more wireless sites will be critical to supporting the demands of wireless broadband consumers in the very near future. With its proposed rulemaking, the FCC now has an excellent opportunity to reduce burdens resulting from unnecessary environmental regulations. And the Commission is in prime position to reduce administrative delays and legal costs stemming from collocation and new cell siting permitting processes.
The FCC should follow through on its wireless infrastructure rulemaking proposal, and do so fast.