Congressman Latta's Bill Would Cut Wireless Permitting Red Tape

On September 4, Representative Bob Latta (R-OH), co-chair of the Rural Broadband Caucus, reintroduced the Winning the International Race for Economic Leadership and Expanding Service to Support (WIRELESS) Leadership Act (the Act). First introduced in February 2021, the Act would "modernize broadband permitting to reduce barriers to deployment."

Among other things, the Act would:

• Establish shot clocks for state and local agencies to act on an application (60 days for the placement of a "small" personal wireless facility using an existing structure, 90 days for other actions relating to a "small" facility or to a larger facility using an existing structure, and 150 days for other actions relating to a larger facility), after which, and upon written notice to the agency, the application would be deemed granted.

• Prohibit "discriminat[ion] among personal wireless service facilities or providers of communications service."

• Ban state and local agencies from exercising their local zoning authority in a manner that would "prohibit or have the effect of prohibiting the provision, improvement, or enhancement of personal wireless services.

• Require that fees be "competitively neutral, technology neutral, and nondiscriminatory"; "established in advance and publicly disclosed"; "calculated based on actual and direct costs" that are "objectively reasonable."

Parties that have been "adversely affected by any final action or failure to act" could seek either expedited judicial relief or administrative relief from the FCC, which would be required to act upon such a request within 120 days.

As Congressman Latta was quoted in the Press Release, "Over the years, billions of dollars have been allocated to expand rural broadband, but without meaningful broadband permitting reform, … all of the federal money will be tied up in burdensome permitting reviews…. " The Act would "streamline state and local permitting, cut through burdensome reviews, and accelerate broadband deployment so more communities can get connected."

CTIA Once Again Asks FCC to Declare that Light Poles Are "Poles"

In a letter dated June 7, 2024, CTIA urges the Commission to at long last clarify that the term "pole" in Section 224 of the Communications Act encompasses both utility poles and light poles. Doing so, it argues, will "bring uniformity to the pole attachment and broadband deployment processes leading to more and faster broadband being available to more people."

In a 2019 Petition for Declaratory Ruling, CTIA asked the FCC, among other things, to "declare that the term 'pole' in Section 224 includes light poles and that utilities must afford nondiscriminatory access to light poles on rates, terms and conditions consistent with Section 244 and the Commission's implementing pole attachment rules."

And while the Wireline Competition Bureau did issue a Declaratory Ruling in July 2020 addressing other aspects of CTIA's petition, it sidestepped this particular topic, writing in a footnote that "[w]e do not address CTIA's request concerning light poles in this Declaratory Ruling, and this issue remains pending."

In light of rapidly growing demand for 5G, including fixed wireless access home broadband, CTIA once again is seeking clarification from the FCC that the reference in Section 224(f)(1) to "any pole, duct, conduit, or right-of-way owned or controlled by" a utility includes light poles.

Light poles and other "street furniture," it turns out, are "well-suited" for the attachment of small cells, which are predicted to make up more than 80 percent of infrastructure deployments going forward. This is especially true in areas where power lines are buried underground and, consequently, utility poles are not available.

Given the current uncertainty, however, CTIA reports that "wireless providers that have sought access to light poles have faced opposition from electric utilities, including flat denials of access, as well as attachment charges that exceed lawful rates." A ruling by the Commission that "any pole" includes a light pole, it maintains, "will serve the public interest by preventing disputes with electric utilities over this issue, thereby removing barriers to wireless deployment."

Court Adopts Pro-Competition, Pro-Innovation Standard on Cell Siting

On July 14, the U.S. Court of Appeals for the Third Circuit issued its decision in Cellco Partnership v. White Deer Township Zoning Hearing Board. The court held that the Zoning Board's denial of Verizon's application to build a cell tower had "the effect of prohibiting the provision of personal wireless services" contrary to the Telecommunications Act of 1996. The Third Circuit's decision is significant because the court applied a pro-competition and pro-innovation interpretation of the "effective prohibition" requirement that the FCC made in a 2018 order. 

At issue in the case was a local zoning board's decision that denied Verizon's application for a zoning variance for purposes of constructing a cell tower. Verizon alleged that the denial of its application was contrary to Section 332(c)(7)(B)(i)(II) of the Telecommunications Act, which states that a local government's actions "shall not prohibit or have the effect of prohibiting the provision of personal wireless services." Verizon prevailed at the District Court, and the zoning board appealed.

 

The Third Circuit concluded that the local zoning board's decision was unlawful under the court's pre-existing APT Pittsburg test for claims that a local government's action violated the "effective prohibition" requirement. Under the APT Pittsburg test: "First, the provider must prove there is a significant gap in wireless service and, second, the provider must show it is filling that gap in the least intrusive manner." 

 

But that did not end the court's analysis. The Third Circuit observed: 

In a declaratory ruling, the Federal Communications Commission (FCC) criticized the APT Pittsburgh test and others like it for being too narrowly focused on coverage gaps and reflecting "an outdated view of the marketplace." Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 FCC Rcd. 9088, 9106-07 [paragraph 40] (2018). Instead, it interpreted the statute to prohibit government action that "materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment." Id. at 9102 [paragraph 35].

The court expressly adopted the FCC's "materially inhibit" standard, concluding that the agency's interpretation is entitled to Chevron deference. In doing so, court noted that the FCC has applied the "materially inhibit" standard to Section 253(a) since its 1997 California Payphone Association Order. Section 253(a) applies to effective prohibitions of "telecommunications services." Based on the canon of statutory construction that identical words in neighboring provisions of the same statute should have the same meaning, the court determined that the "materially inhibit" standard also should apply to the "effect of prohibiting" language found in Section 332(c)(7)(B)(i)(II). 

 

Moreover, upon reviewing the FCC's 2018 order and various court decisions that the order referred to, the Third Circuit derived a few key points: (1) "a prohibition does not need to be complete or 'insurmountable' to run afoul of' § 332"; (2) "local government action which either imposes unreasonable fees or requires a provider to accept unreasonable costs materially inhibits wireless services"; and (3) the "materially inhibit" standard requires us to consider the totality of the circumstances" – meaning that "[a] legal requirement that imposes a reasonable cost on one tower in one jurisdiction may constitute an effective prohibition when aggregated across many towers, or many wireless facilities, in several jurisdictions." 

 

The Third Circuit also recognized the implications of the FCC's "materially inhibit" for wireless competition policy: 

The "materially inhibit" standard is more consistent than the APT Pittsburgh test with the TCA's goals of "promoting competition, securing higher quality services for American telecommunications consumers and encouraging the rapid deployment of new telecommunications technologies." 33 FCC Rcd. at 9105 (quoting Preamble to the Telecommunications Act of 1996, Pub. Law No. 104-104, § 202, 110 Stat. 56 (1996)) (ellipses and brackets omitted). Coverage-gap-based tests are "incompatible with a world where the vast majority of new wireless builds are going to be designed to add network capacity and take advantage of new technologies, rather than plug gaps in network coverage." Id. at 9107-08 (quotation marks and citation omitted). 

Additionally, the Third Circuit acknowledged that the FCC's "materially inhibit" standard constitutes an improvement over the court's pre-existing test for claims that a local government action constitutes an "effective prohibition" on wireless services: 

This case reveals the inadequacy of the APT Pittsburgh test. The Zoning Board plausibly argued that requiring Verizon to remove the property's existing structures or to purchase the property might be less intrusive on the values that the township's set-back requirements sought to serve. But it would be unreasonable for the Zoning Board to require such extreme measures. The APT Pittsburgh test does not clarify how much a local government can reasonably require a provider do to avoid intruding. We think that the "materially inhibit" better answers this question.

The Third Circuit also set forth the implications of the FCC's "materially inhibit" standard for network upgrades to next-generation technologies: 

In light of our decision to adopt the "materially inhibit" standard, not only does "insufficiency in coverage" ordinarily entitle a provider to a variance but so does insufficiency in network capacity, 5G services, or new technology. In the TCA, Congress recognized that "[t]he telecommunications interests of constitutions are . . . statewide, national and international." 33 FCC Rcd. at 9110. Local zoning boards, like White Deer Zoning Board, are prohibited from preventing providers from meeting those broader interests.

The decision in Cellco Partnership v. White Deer Zoning Hearing Board constitutes binding precedent in the Third Circuit. And its reasoning ought to be persuasive to courts in other jurisdictions that face legal challenges to local government denials of wireless infrastructure citing permits.  

 

For additional background on the FCC's 2018 order at issue in Cellco Partnership v. White Deer Zoning Hearing Board, see my September 2020 blog post "Court Decision Will Advance 5G Network Deployment" as well as a June 2022 Perspectives from FSF Scholars, co-authored with Andrew MagLoughlin, "The FCC Should Preserve and Expand Its Broadband Infrastructure Reforms." 

A Strong Future for 5G Requires More Mid-Band Spectrum

On July 13, CTIA released a report titled, "The State of 5G: Evaluating Progress and Charting the Path Forward." The State of 5G Report highlights the rapid speed of 5G network deployment – outpacing deployment of 4G LTE networks – strong consumer adoption of 5G by U.S. consumers, the benefits of fixed wireless access (FWA) in providing residential broadband and closing the digital divide, innovative uses cases for 5G for medical, agricultural and other industries, 5G network reliability and security, and job creation enabled by 5G networks.

Additionally, the State of 5G Report states that "5G is at an inflection point: While initial deployments have achieved a solid footing, attention now turns to the scaling-up of applications and ensuring capacity is available to meet growing demand." Moreover, 5G home broadband service "requires more spectrum to scale up to its potential as a nationwide home broadband competitor. Today operators only offer this service in areas with sufficient capacity to provide reliable quality of service. Without more spectrum, the opportunity for FWA to scale and meet demand for a home broadband alternative to cable will likely be foregone."

 

The report cites estimates that the U.S. will need at least 400 MHz of additional mid-band spectrum to supply projected demand in 5 years, and also need nearly 1,500 MHz in 10 years. Yet the report also observes, correctly, that there are no planned spectrum auctions in the works. The FCC already has allocated significant amounts of spectrum for unlicensed uses, including Wi-Fi. But significant amounts of spectrum remain under federal agency control, and action is needed to put more spectrum into commercial use on an exclusive licensed basis. As Free State Foundation President Randolph May and Senior Fellow Andrew Long have written about on several occasions, the Commission's authority to conduct spectrum license auctions has lapsed and it needs to be restored. To date, Congress has not succeeded in passing legislation to restore the FCC's spectrum license auction authority.  

 

The report identifies things that must be done in order to ensure that the U.S. maintains its economic competitiveness and national security when it comes to 5G services. It cites estimates that the U.S. will need at least 400 MHz of additional mid-band spectrum to supply projected demand in 5 years, and also need nearly 1,500 MHz in 10 years. But as the report observes, today there are no planned spectrum auctions for spectrum licenses. 

 

The report also states that U.S. support for proposals to new mobile allocations for 1,490 MHz of spectrum located between 4.8 GHz and 10.5 GHz, both at the November 2023 World Radio Conference and domestically, would put the U.S. in prime position for the 5G future. 

As I have written in prior blog posts, Congress can do its part in securing a strong 5G future for the U.S. by taking up and passing the Spectrum Auction Reauthorization Act of 2023 – H.R. 3565. The Act, if passed into law, would restore the FCC's statutory authority to hold spectrum license auctions. Additionally, the Act would authorize the NTIA to study the feasibility of making 4 GHz band and 7/8 GHz band available for commercial use on an exclusive or shared basis. 

White Paper Examines the Prospects for Mid-Band Spectrum

On March 23, 5G Americas released a white paper titled "Mid-Band Spectrum Update." The white paper describes existing spectrum use as well future opportunities for spectrum use in the mid-band (1 GHz to 7 GHz) and "extended mid-band" (8.5-16 GHz) ranges. 

In previously published Perspectives from FSF Scholars papers and blog posts, Free State Foundation scholars have observed: (1) spectrum in the mid-band range is a necessary input for optimizing 5G networks and supplying surging demand for wireless data; and (2) there is a shortfall in mid-band spectrum availability. Right now, the federal government is the primary user or occupier of mid-band spectrum. Repurposing significant portions of that underutilized spectrum for private licensed commercial use is therefore a top-level priority. The 5G Americas white paper helpfully offers a description of the potential opportunities as well as challenges for repurposing different swaths of spectrum within the mid-band and extended mid-band ranges. 

The white paper observes that "[t]here are currently no bands in the spectrum pipeline in the U.S." Rightly, the white paper calls on the FCC and NTIA to create a new spectrum pipeline that prioritizes availability of lower range frequencies in the mid-band range of 3 to 8 GHz. The increasing urgency in identifying and repurposing spectrum for private commercial use also was a key topic of conversation at FSF's Fifteenth Annual Policy Conference, which was held on Tuesday, March 28th in Washington, D.C. In the weeks ahead, expect to hear more about what went down at #FSFConf15 and the need for a plentifully stocked spectrum pipeline to fuel 5G deployment in the U.S.   

Cell Tower Case Shows Wireless Siting Rules Remain a Must for 5G Buildout

On September 26, Verizon Wireless voluntarily dismissed a lawsuit against the City of Fresno, California, as the parties reached an agreement on Verizon's construction of a 5G cell tower. The resolution of the case removes a series of roadblocks to construction of next-generation wireless infrastructure, and it stands as a reminder of the importance of infrastructure siting policies such as "shot clocks" that prohibit unreasonable permit process delays. 

Back in July 2021, Verizon filed a permit application to build an 80-foot tower in the back of a parking lot in the downtown area of Fresno, east of a highway, in order to meet wireless traffic capacity demands. The 150-day "shot clock" in which the city was required to make a decision on the permit application, the shot clock expired on February 28, 2022 without the city having reached any such decision. This despite two separate agreements between Verizon and the city of Fresno to toll the 150-day "shot clock" and thereby extend it for the city's benefit. The city made the Verizon's application the subject of four public hearings without having made any final decision when the wireless carrier finally filed its lawsuit in the U.S. District Court for the Eastern District of California on June 30, 2022. 

 

Under Section 332(c)(7)(B)(ii) of the Telecommunications Act of 1996, a local government must "act on any request for authorization to place, construct, or modify personal wireless facilities within a reasonable period of time." In its 2009 Wireless Infrastructure Order (or Shot Clock Ruling), the FCC used its discretionary authority to interpret that statutory provision by establishing a rebuttable presumption that a "reasonable period of time" is 90 days to process a "collocation" application and 150 days to process all other applications – including the construction of new cell towers like the one Verizon is now going to build in Fresno.
 

On its face, it seems quite unlikely that Fresno would have been able to overcome the presumption that its lengthy and ongoing delay in making any decision about whether to approve or deny Verizon's cell tower permit application was justified. The city almost surely would have taken a loss in court, and Verizon would have obtained judicial relief necessary to build the tower. Now that the matter has been resolved, Verizon will build the tower and expand its 5G network coverage and capacity for residents in Fresno.

 

The lawsuit in Fresno MSA Partnership Limited (Verizon) v. City of Fresno and its result bespeak the continued need for wireless infrastructure citing rules that prohibit unreasonable permit processing delays and other unreasonable local regulatory obstacles to building next-generation wireless infrastructure. If there had been no "shot clock," who knows how long the administrative delay in Fresno would have continued? 

 

My Free State Foundation former colleague Andrew Magloughlin and I made this same basic point in a June 2022 Perspectives from FSF Scholars titled "The FCC Should Preserve and Expand Its Broadband Infrastructure Reforms." In that Perspectives, we wrote: "Local regulatory barriers to broadband infrastructure deployment have come in the forms of moratoria on construction permit approval, lengthy administrative processing periods for permit applications, high fees for filing permits that bear no relation to the costs of reviewing applications, and high recurring fees for providing service." Our Perspectives focused on the infrastructure policy reforms adopted by FCC between 2018 and 2021. As we explained in that paper: 

The Commission's important recently-adopted infrastructure policy reforms preempt such barriers to broadband facilities construction and upgrades. By reducing unnecessary local regulatory costs, the Commission's reforms help preserve provider resources for investment in additional broadband infrastructure, including in harder-to-serve areas. And the elimination or reduction of excessive local administrative delays allows consumers timelier access to 5G, fiber, and gigabit-speed cable broadband services. 

The federal government has allocated $42.45 billion in funds through the Broadband, Equity, Access, and Deployment (BEAD) Program as well as billions more through other programs to subsidize buildout of broadband network facilities to unserved Americans. Having infrastructure siting policies like shot clocks in place will help ensure that those billions achieve their purpose in connecting more Americans and closing the digital divide. 

Data Shows 5G Network Connections Surge Continues in 2022

A September 21 press release by 5G Americas announced that "Global 5G Connections are Doubling Every Year." Data from Omdia and 5G Americas apparently indicates that global wireless 5G connections rose to 813 million by the end of the second quarter of this year. They forecast that global 5G connections will reach 1.1 billion by the end of 2022.

The 5G Americas press release does not offer any statistical breakdowns specific to the U.S. But it does describe the march of 5G adoption in a combined "North America" category that consists of the U.S. and Canada: 

By region, North America had a total of 99 million 5G and 502 million LTE connections by the end of Q2 2022. This translates into an addition of 17 million 5G connections for the quarter – a gain of 20.7 percent over Q1 2022. Additionally, CTIA notes fast growth in 5G uptake in the United States, which now identifies 315 million Americans covered by 5G and one-third of American adults having an active 5G device. Overall, a total of 137 million 5G connections is projected to come from North America by the end of 2022.

The lion's share of 5G connections growth in North America belongs to the U.S. A January 7 blog post called attention to an Ookla report that ranked the U.S. #1 in terms of 5G network availability. This growth in 5G in the U.S. critically depends on strong private sector capital investment – a factor highlighted in a September 15 blog post by Free State Foundation Senior Fellow Andrew Long. And a replenished supply of new spectrum for licensed and unlicensed wireless use will also be needed in order to maximize the value of 5G networks for Americans. On the pressing need for more mid-band spectrum for commercial wireless use, see Mr. Long's September 22 blog post. 

CTIA Annual Survey: Record-Breaking Investment Benefits Consumers

On Tuesday, CTIA released the 2022 edition of its annual wireless industry survey. Among other milestones, it documents an unprecedented level of investment, accelerated cell-site deployments enabled by regulatory reforms, the explosive adoption by consumers of 5G devices, inflation-defying price decreases, and the rapid rise of fixed wireless as a viable home broadband alternative.

Specific findings from the survey include the following:

In 2021 alone, U.S. wireless carriers spent almost $35 billion "to grow, improve and run their networks." As the following chart illustrates, that record-breaking total represents the fourth straight year of increased annual investment.

Thanks to efforts by the FCC and the states to streamline siting regulations, 69,543 cell sites – 62 percent of the post-2016 total – were constructed in the two years between 2019 and 2021.

5G service today is available to 315 million Americans. And consumers are adopting this mobile broadband technology at a brisk pace: the total number of deployed 5G-capable devices grew by over 500 percent during just the past year. Consequently, one in three adults now have a 5G-capable smartphone or other device.

While consumer prices overall have increased by 94 percent thanks to "historic" levels of inflation, prices for unlimited data plans have fallen by nearly half since 2010.

5G fixed wireless quickly has emerged as a viable competitive alternative for home broadband service: over 40 million households already have access to this option.

Highlights from CTIA's 2022 Annual Survey are available here.

DISH Network Reports Progress on its Nationwide 5G Buildout

On July 14, DISH Network submitted to the FCC its "5G Buildout Status Report." The report summarizes DISH's progress in building out its 5G network capabilities and offerings as part of its plan to become a nationwide wireless provider. 

Pursuant to the T-Mobile/Sprint merger and legal settlement, DISH acquired Sprint's Boost Mobile brand as well as spectrum licenses, along with buildout obligations. DISH is operating Boost as a mobile virtual network operator (MVNO) and simultaneously deploying a standalone 5G network. A 2020 FCC order requires DISH to follow through on commitments it made to offer 5G broadband services to at least 20% of the U.S. population and deploy a core network for its spectrum licenses in certain bands. 

According to DISH's 5G Buildout Status Report:

DISH is pleased to certify that, as of June 14, 2022, we offer 5G Broadband Service to 72,769,696 people in the United States. This coverage equals approximately 22 percent of the total U.S. population according to the 2020 U.S. Census with respect to DISH’s AWS-4 and AWS H Block licenses; DISH covers more than 25 percent of the population in those markets where DISH holds a Lower 700 MHz E Block license. (Emphasis in the original.)

According to DISH, its 5G service offerings became available to more than 120 cities by June 14, 2022. Its service interconnects with third party networks for 4G and 5G data roaming when out of DISH's footprint. 

Given all the unforeseen obstacles DISH has faced stemming from government-imposed lockdowns, labor shortages, microchip shortages, and supply chain problems, DISH's apparent progress is commendable. And DISH's ongoing efforts to deploy a nationwide standalone 5G network are another indicator of the competitive state of the broadband marketplace. For more on the competitiveness of the broadband services market, check out the comments that the Free State Foundation filed in July for the FCC's 2022 Communications Marketplace Report proceeding. 

Ookla Insights: U.S. Leads World in 5G Availability

Ookla's report on global 5G speeds ranks United States 5G networks number one in the world for 5G availability, more than doubling the performance of networks in China, Canada, and almost the entire continent of Europe. This is an encouraging sign ahead of January 19th, the date when AT&T and Verizon will begin activating the high-capacity C-Band spectrum that should substantially boost U.S. 5G network speeds. But it also highlights the need to free more spectrum for 5G. 

Ookla defines 5G availability as the "percent of users on 5G-capable devices [who] spent the majority of their time on 5G," and the United States sits atop the world at 49.2%. This means that roughly half of all 5G device users in the U.S. had 5G connections during a majority of their time on wireless networks. China (20.1%), Canada (23.7%), Japan (7.6%), and the vast majority of European countries are far behind the U.S. on 5G availability, with only Netherlands (45.3%) and South Korea (43.8%) posting comparable availability above 40%.

The report also highlights that the U.S. lags behind other countries in median 5G speeds, but this is partly a function of spectrum policy and should be improved by fast-approaching carrier deployments of C-Band spectrum and other mid-band frequencies like the recently concluded 3.45 GHz auction. So far, U.S. 5G networks have largely relied on low-band spectrum for nationwide 5G deployment and high-band spectrum in certain dense urban settings. Mid-band spectrum, such as C-band spectrum and other nearby frequencies, has the combination of high-capacity and propagation over distances that leads to nationwide fast speeds.

Deployment of C-Band spectrum and other mid-band frequencies will also improve 5G speeds by densifying networks so a higher number of base stations each support fewer customers. The FCC should take additional actions to free mid-band spectrum for commercial use, such as setting a date for the 2.5 GHz auction and announcing auctions in additional bands, so U.S. 5G networks improve their speed ranking.

But the report also highlights that widespread 5G availability in the U.S. is in some ways more important than posting the fastest speeds. For example, Norway ranks second among countries for median 5G download speeds at 426.75 Mbps, but its availability is a mere 8.4%. This means 91.6% of Norwegians spend less than half their time on 5G when connected to wireless networks. This fact suggests that Norway's and other low-availability countries' top speed rankings are paper tigers – their 5G is fast but rarely used in real life. U.S. consumers are experiencing 5G far more often, and at high speeds, like the 160.41 Mbps median 5G speed Ookla measured in our nation's capital.

The United States' first place ranking for global 5G availability in Ookla's report is welcome news. The FCC should continue to act – especially by auctioning more mid-band spectrum – so the U.S. can also claim a top global ranking for speeds.

Sunny Forecast for 5G Fixed Wireless Broadband Access in the U.S.

According to a November 10 report by ABI Research, "in 2026, the FWA [Fixed Wireless Access] market will exceed 180 million subscriptions and generate US$70 billion in revenue." It forecasts quick 5G FWA rollouts in North America because it can be deployed faster to subscribers and for less capital expenditures compared to fiber-to-the-home. Thus: "In 2026, North American and Europe combined will represent nearly 60% of global 5G FWA subscriptions." While these figures aren't specific to the United States, one ought to expect this country to be the leader in 5G FWA deployment. And the press release for ABI's report acknowledges that Verizon is an early adopter of 5G FWA using mmWave band spectrum, with U.S. Cellular also planning to deploy in the mmWave band. 

The future of 5G FWA looks bright in the U.S. with T-Mobile and AT&T both making offerings available. And an October 26 blog post by Free State Foundation Legal Fellow Andrew Magloughlin highlighted the Verizon-Amazon deal for rural backhaul that will deliver Verizon's fixed wireless service. In the months ahead, expect FSF scholars to have more to say on 5G FWA and its implications for competition policy. 

Second Quarter of 2021 Saw Surge in 5G

There was a dramatic increase in 5G wireless adoption over the second quarter of this year, according to 5G Americas' press release on September 22:

By region, Omdia data indicates North America [U.S. and Canada] had a total of 44.6 million 5G connections by the end of Q2 2021, which is an addition of 17.9 million 5G connections and 67 percent quarter over quarter growth. Additionally, it had 501 million LTE connections by the end of Q2 2021, which marks a 0.66 percent quarterly decline in LTE.

In a pair of recent Perspectives from FSF Scholars, I wrote about how timely sunset of 3G networks – including AT&T's and T-Mobile's legacy networks – is one important factor in facilitating 5G adoption. Repurposing of additional spectrum from government use to licensed commercial use – particularly in the lower 3 GHz band – also will help realize the speed and capacity potential of 5G networks and thereby boost the U.S. economy and create new jobs. 

Latest Wireless Industry Survey Reveals Continued Growth in Investment, 5G Deployments, and More

The 2021 annual survey of the wireless industry conducted by CTIA details steadily increasing investment, rapidly expanding 5G deployments, and a robust response to the spike in demand driven by COVID-19.

Released by CTIA on July 27, 2021, the 2021 Annual Survey Highlights present a compelling portrayal of progress and performance during a year over which the pandemic cast a heavy shadow.

A few highlights:

• Private investment in mobile networks increased for the third consecutive year, reaching a five-year high of $30 billion. Capital expenditures to date exceed $600 billion.
• 5G networks were deployed at a pace exceeding that achieved by 4G networks and in 2020 covered 300 million Americans, compared to only 200 million twelve months prior. First launched in 2019, 5G already is available to 90 percent of the country.
• In the last two years, mobile carriers constructed nearly 68,000 new cell sites, an achievement facilitated by wireless infrastructure reforms implemented by the FCC.
• Total mobile data consumption exceeded 42 trillion megabytes in 2020, an increase of more than 200 percent since 2016. Over the past decade, mobile data traffic has grown by a factor of 108.

FCC Should Boost 5G Backhaul by Updating Rules in 70/80/90 GHz Bands

American success in the race to 5G depends on a strong supply of backhaul for transmitting ever-increasing volumes of mobile and fixed wireless data. To help enhance wireless backhaul capacity, the Commission should modernize its antenna rules so that small cells can provide backhaul in the 70/80/90 GHz spectrum bands. 

Backhaul connections route voice and data traffic from mobile and fixed wireless providers' cell sites to mobile switching centers that link to the providers' core networks, the public switched telephone network, and the Internet. Wireless spectrum provides a vitally important transmission medium for backhaul. In its Sixteenth Wireless Competition Report (2013), the FCC recognized that "[m]obile backhaul needs will keep increasing as wireless carriers continue to deploy LTE technology in their networks." This was undoubtedly true as mobile networks transitioned to 4G, and it remains equally true now that 5G networks are being deployed. According to Cisco's 2021 Annual Internet Report, there will be 299 million mobile wireless users in the U.S. in 2023, up from 285.3 million in 2018, and there will be 3.4 connected mobile devices per capita in 2023 compared to 1.7 devices in 2018. Additional backhaul capacity is needed to help support data traffic increases resulting from anticipated future demand, including continuing growth in wireless viewing of HD and even 4K video.

But the Commission's old antenna rules were not established with small cells in mind. Technical changes made to those rules back in 2005 long predate 5G technological advances. In its June 2020 rulemaking notice, the Commission stated that the 70/80/90 GHz millimeter wave bands have been underutilized. Recognizing these facts, the Commission proposed to update its antenna rules for the 70/80 GHz band, and it sought comment on whether to make similar updates to its rules for the 90 GHz band. 

 

Modernization of the Commission's antenna rules requires harmonization between federal and non-federal users of the 70/80/90 GHz bands. Fortunately, there appears to be an industry consensus that antenna rule updates to accommodate small cells won't interfere with other uses of that spectrum. A prime opportunity now exists to boost 5G backhaul in those bands, and that opportunity needs to be seized without delay.

 

A February 2021 report by the Boston Consulting Group (BCG) estimates that 5G infrastructure buildout will directly contribute $400-500 billion to U.S. GDP and create up to 1 million jobs over the next ten years. But BCG also estimates nationwide losses of $25 billion in potential benefits for every 6-month stall in 5G deployment. Given the importance of backhaul to next-generation wireless networks as well as the sizable economic benefits to Americans resulting from timely deployment of 5G, the Commission should take prompt action to update its rules for the 70/80/90 GHz bands. 

Data Shows 5G Network Connections Surge in 2020

A March 25 press release by 5G Americas titled "5G Achieves Mass Market Appeal" summarizes year-end progress in next-generation network deployment for North America and for the globe. According to the press release, which is based on data collected by Omdia, worldwide 5G connections grew to 401 million last year, with a rate of adoption three times faster than 4G LTE adoption. Although the press release didn't include country-specific totals, it did touch on 5G deployment in the for region consisting of the U.S. and Canada:

Broken down regionally, North America had 19.96 million 5G connections and 499 million LTE connections by the end of Q4 2020. For the region, this amounts to a 4098% annual growth in 5G, and a gain of over 19.5 million 5G connections over the year. Meanwhile, 4G LTE gained over 22 million connections in 2020, which represents 4.7% growth.

Additionally, Omdia forecasted that 5G will reach 451 million in North America by the end of 2025. For more findings and forecasts, see 5G America's press release.

A Court Defends Federal Policy Promoting Deployment of Wireless Infrastructure

A recent federal court decision has dealt the latest whack to the mole that is local government intransigence, at least in some parts of the country, to rapid wireless infrastructure deployment.

As a nation, Americans generally acknowledge that technological innovation improves consumers' lives. New 5G wireless networks, one of the latest such examples, offer substantially faster speeds, facilitate innovative use cases, and, in many instances, provide a viable substitute to fixed broadband offerings. U.S. mobile carriers have established a first-mover advantage in the global race to 5G, and maintenance of that benefit-generating lead hinges upon the timely upgrade of network infrastructure.

Nevertheless, there exists a storied history of many state and local governments placing revenue-generating and other parochial interests above that greater good.

In response, Congress passed Section 6409(a) (47 U.S.C. § 1455) as part of the Middle Class Tax Relief and Job Creation Act of 2012. It states in relevant part that "a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station."

In 2014, the FCC adopted rules implementing Section 6409(a). One such provision, Section 1.6100(c), establishes a 60-day shot clock pursuant to which "the State or local government shall approve the application unless it determines that the application is not covered by this section."

In the fall of 2020, during the COVID-19 pandemic and the increased network demands that it generated, T-Mobile submitted more than 80 applications to make non-substantial modifications to existing wireless infrastructure in San Francisco. The city did not act on every one of those applications within the 60-day window, and eventually the matter ended up before the Northern California District Court.

On March 19, 2021, the court issued an Order granting, in part, T-Mobile's motions for summary judgment and a preliminary injunction.

This dispute is somewhat unique. The parties agree on the basic facts: that the applied-for modifications qualify as "eligible facilities request[s]" under Section 6409(a), that San Francisco failed to act upon T-Mobile's applications before the 60-day shot clock expired, that T-Mobile provided the city with the required notifications thereafter, and even that those applications are "deemed granted" under Section 1.6100(c)(4) of the Commission's rules.

The controversy, instead, centers on the specific judicial remedies to which T-Mobile is entitled.

T-Mobile sought injunctive relief in the form of a court-issued mandate to grant the requested permits. Understandably, it wanted the administrative certainty that comes with possession of such a document.

In its Reply in Support of Motion for Summary Judgment and Motion for Preliminary Injunction (PACER account required), T-Mobile highlighted the fact that, in the Commission's 2014 Report and Order implementing Section 6409(a), it expressly stated that "[w]ith respect to the appropriate forum for redress or for resolving disputes, including disputes over the application of the deemed granted rule, we find that the most appropriate course for a party aggrieved by operation of Section 6409(a) is to seek relief from a court of competent jurisdiction."

Accordingly, T-Mobile maintained that it was entitled to a preliminary injunction directing the city to issue permits for the applications that the city did not dispute were "deemed granted."

The city countered that the Fourth Circuit's 2015 decision in Montgomery County, MD v. FCC, holding that Section 6409(a) does not run afoul of the Supreme Court's anti-commandeering doctrine, is premised on the fact that it "does not require the states to take any action at all, because the 'deemed granted' remedy obviates the need for the states to affirmatively approve applications."

Citing the seminal Supreme Court anti-commandeering cases Murphy v. NCAA and Printz v. United States, San Francisco asserted that the availability of the judicial relief that T-Mobile sought – a preliminary injunction imposing an affirmative duty upon the city to issue permits – would render Section 6409(a) unconstitutional.

In its minimalist Order, the court essentially sidestepped this issue. Specifically, it (1) concluded as a general matter that Section 6409(a) does not violate the anti-commandeering doctrine, and (2) refused to require the city to issue the permits – without weighing in explicitly on whether any interdependency exists between the former and the latter.

For more on the anti-commandeering doctrine and Section 6409(a), please read Free State Foundation Director of Policy Studies and Senior Fellow Seth L. Cooper's July 2018 Perspectives from FSF Scholars, "FCC's Proposals Promoting Infrastructure Deployment Don't Violate Anti-Commandeering Rule."

Returning to the whack-a-mole metaphor I used at the top, this decision, along with the FCC's June 2020 5G Upgrade Order that Mr. Cooper discussed in two posts to the FSF Blog, highlight the determination with which some local governments defend and maintain their approval power – and the important efforts by the FCC and the courts to beat back those attempts.

In its Reply, T-Mobile alleged that the city, in a direct attempt to defy the intent of Section 6409(a), "continued to process applications, including issuing notices for nearly all of the October Deemed Granted Applications after T-Mobile deemed those applications granted, asserting that T-Mobile's applications conflict with City zoning, building, and health and safety codes."

The court took action to block this end run around Section 6409(a) by issuing a preliminary injunction stating that the city is "estopped from imposing penalties or in any way preventing T-Mobile from proceeding with installations for T-Mobile's deemed granted applications."

Similar efforts to craft workarounds to the FCC's 2014 rules implementing Section 6409(a) became apparent in the years after their adoption. As Commissioner Brendan Carr acknowledged in a 2020 speech, "sometimes our rules are being read to delay or block what should be straightforward projects."

As a result, Commissioner Carr spearheaded the effort leading to adoption of the 5G Upgrade Order, which offered clarifications designed to "provide greater certainty to applicants for State and local government approval of wireless facility modifications, as well as to the reviewing government agencies, [which] should accelerate the deployment of advanced wireless networks."

It appears that, left unchecked, some local governments might pursue any means necessary to reclaim the power they once wielded over mobile carriers via the permitting process. The Northern California District Court's recent Order is the latest example of responsive actions to stay one step ahead of such efforts – and, in doing so, defend and advance the federal policy to prioritize the rapid deployment of communications infrastructure, including 5G networks, that benefit all Americans.

Report Emphasizes 5G Job Creation and Boost to the US Economy

A new report by Boston Consulting Group (BCG) titled "5G Promises Massive Job and GDP Growth in the US" estimates the significant economic boost that the American economy will receive on account of next-generation wireless network deployment. The report was released on February 2, 2021. 

 

According to BCG's report, "5G deployment will contribute $1.4 trillion to $1.7 trillion to US GDP and create 3.8 million to 4.6 million jobs" over the next ten years. The report provides a helpful overview of the primary stages of 5G development – "foundation," "expansion," and "augmentation." Coinciding with those three states of development, BCG's report projects that 5G will first drive economic activity through network infrastructure deployment but then enable "an even greater wave of economic activity" indirectly as 5G networks enable new uses across manufacturing, construction, health care, and other industries. 

The expected economic benefits from 5G networks should prompt Congress, the FCC, and NTIA to continue infrastructure siting reforms as well as efforts to make more spectrum available for commercial 5G services. 

 

BCG's new report on 5G's job and GDP prospects is a follow-up to a report I covered in a September 2020 blog post. 

FCC Adopts Proposal on Consumer Presales for 5G Devices

At its December 10 public meeting, the FCC adopted a proposed rulemaking that would permit imports, marketing, and pre-sales of 5G devices prior to Commission authorization of those devices for consumer use. However, the proposal would not permit such devices to be delivered to consumers until they have been authorized by the Commission. The petition that prompted the Commission's proposed rulemaking was the subject of my August 14 blog post. This sensible proposal, which is expected to receive final Commission approval sometime in 2021, will help hasten U.S. consumer adoption of advanced 5G network services.    

Ericsson Mobility Report Looks at the Next 5 Years of 5G

The latest iteration of the Ericsson Mobility Report was released on November 30. This new report spotlights recent progress in 5G network deployments on a regional as well as global basis. And the report offers growth projections for fixed and wireless mobile services for the next five years. 

The Ericsson Mobility Report takes a primarily international outlook, forecasting 3.5 billion 5G subscriptions by the end of 2026. However, the report includes some analyses and projections for wireless services in North America: 

In North America, 5G commercialization is moving at a rapid pace. Service providers have already launched commercial 5G services, focused on mobile broadband. The introduction of 5G smartphones supporting all three spectrum bands will make 2021 an eventful year for early 5G adopters. FWA [fixed wireless access] will play a key role in closing the digital divide where the pandemic has exposed large gaps for education, remote working and small businesses. By 2026, more than 340 million 5G subscriptions are anticipated in the region, accounting for 80 percent of mobile subscriptions. 

Looking at mobile subscriptions in North America, the report found that 5% are for 5G services and 89% are for 4G LTE services. By 2026, it is expected that 5G services will comprise 80% of mobile subscriptions in North America and 4G will comprise the remaining 20%. Additionally, the report tracked growth in the regional percentage of North American service providers offering fixed wireless access. Provider offerings of fixed wireless increased from 70% in February 2020 to 80% by October 2020. And the report projects that mobile data traffic per smartphone in North America will jump from 11.8 GB per month to 49 GB per month – a compound annual growth rate of 27%. Also: "In 2026, 5G subscription penetration is set to be the highest of all regions at 80 percent."

 

Regarding the United States, the report acknowledged that 5G coverage build-out spans three-categories: 1) New bands in the sub-6GHz range; 2) mmWave frequency bands; and 3) Existing LTE bands. The report concludes that this approach has resulted in 5G coverage "for a large part of the population."

 

But as Free State Foundation Scholars have pointed out in recent publications, there's plenty that Congress and the FCC ought to do to accelerate 5G deployment in the U.S. For starters, check out "Congress Should Fund Needed Broadband Maps This Session," a Perspectives from FSF Scholars paper by FSF President Randolph May and Senior Fellow Andrew Long. Also see my Perspectives paper, "The FCC Should Promote Timely Transitions to Next-Gen Broadband."

GSMA Report Projects 5G Preeminence in 2025

On October 27, GSMA Intelligence released its "Mobile Economy North American 2020" report. It looks at the recent mobile services landscape and projects mobile growth in investment, job creation, 5G adoption, and other consumer use habits for the U.S., Canada, and Caribbean Islands up to 2025. 

Looking back at 2019, the report observed that mobile technologies and services generated 4.8% of gross domestic product (GDP) in North America, and supported over 2 million jobs – directly and indirectly. Regarding growth of next-generation mobile wireless services, the report had this to say:

Although the rate of 5G adoption was lower than initially expected in the first half of 2020 because of the pandemic, this is likely to be a blip. North America will reach 100 million 5G connections in 2022, driven by continued network investments from operators and the expanding range of 5G smartphones at varying price points. By 2025, North America will have become the first region where 5G accounts for more than 50% of total connections.

Although most of GSMA report's projections concern the North American region as a whole, it did offer some insights specific to the U.S. By 2025, the percentage of Americans connected via 5G will grow to 55% compared to about 1% in 2019. Also, smartphone adoption in the U.S. is projected to rise to 93% in 2025, up from 85% in 2019. 

 

In terms of public policies needed to expedite 5G network deployment and adoption by consumer, the report emphasized that mobile service providers need streamlined local governmental processes for approving new infrastructure construction and upgrades. Mobile service providers "also need timely and sufficient availability of mid-range spectrum, which offers a balance of coverage and capacity that is critical to 5G's success. Making this spectrum available has sometimes proved to be a challenge due to incumbent users in prime bands, including government users."