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."

FWA Make Further Strides, More Spectrum and Cell Sites Needed

In today's communications market, cross-platform competition is exemplified by fixed wireless access (FWA) broadband services. In the third quarter of 2024, consumer adoption of both FWA continued strong. 

According to a report in Light Reading, in the third quarter of 2024, Verizon had 2.67 million FWA subscribers – 1.64 million residences and 1.03 million for businesses. And a report at SDxCentral indicates that AT&T Air gained about 135,000 subscribers to its Internet Air FWA service, for a total of about 500,000. T-Mobile reported gaining 541,000 subscribers to its Home 5G FWA service during the quarter, bringing its reported total to over 6 million.  

 

Further growth is expected. It is reported in Fierce Network that Verizon plans to expand its C-band spectrum to 70% of its planned footprint by the end of this year and to double its FWA footprint to 90 million homes and businesses by 2028. Also, it's reported in Light Reading that New Street Research has predicted T-Mobile will add 1.45 million FWA subscribers next year, Verizon will add 1.3 million, and AT&T will add about 550,000. SDxCentral reported that T-Mobile has a goal of serving 12 million FWA subscribers by the end of 2028, and Verizon has a goal of serving 9 million by 2028. 

 

For the FCC, particularly under its prospective new membership in the second Trump Administration, increasing access to spectrum and ensuring streamlined permitting processes for constructing wireless infrastructure will be keys to realizing the future potential of FWA as a high-quality service and competitive choice for residential broadband subscribers in America. 

 

In July 2024 public comments to the FCC for its forthcoming Communications Marketplace Competition Report, Free State Foundation President May and I wrote:

To further promote competition, innovation, and investment in the broadband marketplace, the Commission should work proactively to make more spectrum available for commercial use and by removing regulatory barriers to broadband deployment… There is particularly strong demand for additional mid-band spectrum. The Commission ought to prioritize the lower 3.1-3.45 GHz band for study and prompt repurposing… Although proposals for repurposing different bands are at different stages of development and each faces unique challenges, the Commission should advance every proposal for spectrum that may realistically be suitable for commercial uses – whether on a licensed or unlicensed basis. A larger spectrum supply will enable more competitors to serve more Americans with next-gen services. 

For now, there is no spectrum in the pipeline for commercial services. A priority for the incoming Trump Administration will be to replenish that authority and restore the FCC's authority to conduct spectrum license auctions. Meanwhile, as indicated by an article in Fierce Networks, network densification – including constructing additional cell towers and other infrastructure – may be one way to expand network capacity while mid-band spectrum remains scarce. 

Survey Shows Sharp Increases in Mobile Data, Growth in 5G Home Broadband

On September 10, CTIA released its 2024 Annual Survey. The Survey Highlights report is available online. It shows the strong growth in mobile wireless connections, data usage, cell sites, and 5G Home connections during the year 2023.  

CTIA reported that wireless data traffic in the U.S. grew, as U.S. wireless networks supported 100 trillion MB of traffic last year, up from the nearly 74 trillion MB from the year before. Additionally, nearly 40% of wireless devices were 5G devices, for 216 million total active 5G devices in 2023, and the 558 million total wireless connections were up from 523 million from the year prior. Also, the total number of cell sites in the U.S. grew to 432,469 – up 24% from 2018. This continued growth was supported by annual wireless investment totaling $30 billion in 2023. Regarding 5G Home Broadband – or fixed wireless access (FWA) services – CTIA reported: "Over the past two years, 95% of net new broadband subscribers chose 5G home service—and importantly, 1 out of 5 net 5G home adds were entirely new home broadband subscribers." More stats are contained in the 2024 Annual Survey Highlights.

 

My July 30, 2023, blog post spotlighted CTIA's 2023 Annual Survey Highlights.

 

To fully realize the benefits of 5G connections, more spectrum will need to be available, especially licensed spectrum for commercial wireless uses. In January 2024, Free State Foundation President Randolph May published "Communications Law and Policy Priorities for 2024." One of those priorities is to "Reopen the Spectrum Pipeline and Act to Fill It." As FSF President May explained in a Media Advisory from March of this year, one constructive proposal for doing that is the Spectrum Pipeline Act of 2024 (S.3909).

 

Also, legislation for streamlining and speeding up permit processes for wireless infrastructure construction would help foster continued growth in wireless services and improve as well as increase connections for Americans. My blog post from August 7 identified one measure worth considering, the Accelerating Broadband Permits Act (S.4281), which is intended to help ensure the timely processing of permits for building new wireless infrastructure on federal lands. 

Senate Bill Would Ensure Timely Broadband Infrastructure Builds on Federal Land

On July 29, Senators John Thune, Ben Ray Luján, and John Barrasso introduced the Accelerating Broadband Permits Act. The purpose of the bill is to improve executive agencies’ processing of permit applications for the construction of communications facility installations on federal land. Under the MOBILE NOW Act of 2018, executive agencies with supervision over federal lands have 270 days to make decisions on applications for permits to build towers, antennas, cables, or any other infrastructure associated with wireless or wireline services. An April 2024 Government Accountability Office Report found problems with agencies processing those applications within the deadline. The Accelerating Broadband Permits Act is intended to address those problems and help identify instances where the agencies are likely to fail to meet the deadline and ensure timely processing.

The FCC has long recognized that local permitting processes are often a major impediment to timely broadband access. The Accelerating Broadband Permits Act would help alleviate that impediment on federal lands. The Act appears to be worthwhile legislation that could help accelerate network infrastructure deployment to underserved and unserved Americans. Much land in western states is held in trust or owned by the federal government, and federal agencies must fulfill the responsibilities that come with being a trustee or property owner, not to mention comply with the MOBILE NOW Act. 

 

Senators Thune, Luján, and Barrasso deserve credit for bringing forward this bill. Several billion dollars in subsidies are going to be distributed by NTIA to the states under the Broadband Equity, Access, and Deployment (BEAD) Program to fund new buildouts. The effectiveness of BEAD Program subsidy dollars will depend, to a significant extent, on having workable federal siting policies in place. The 118th Congress should give the Accelerating Broadband Permits Act timely consideration.  

Report IDs Key Stats on Wireless Infrastructure, But Regulatory Threat Looms

On April 16, the Wireless Industry Association (WIA) released its report, "Wireless Infrastructure By The Numbers: 2023 Key Industry Statistics." As the title indicates, WIA's report provides a high-level look at the overall number of cell towers, macro sites, and small cell facilities that mobile service providers use to offer mobile broadband Internet access services. According to WIA's report, as of 2023, there were 153,400 cellular towers in operation in the U.S., in addition to nearly 245,000 macrocell sites and 202,100 outdoor small cells in operation. The report found that there also were nearly 776,000 indoor small cell nodes in use as of last year. These figures surely have grown since 2023.  

Moreover, WIA's report found that "[t]he U.S. cellular industry spent $11.6 billion building additional capacity and coverage into the nation’s wireless networks in 2023." Another interesting observation in the report is that "[m]ore towers and cell sites are being deployed but the amount spent building networks is flat" because "[a]s wireless network technologies mature and evolve, network equipment becomes more efficient and cost effective." Also, "[t]he amount spent on maintaining and operating the cellular networks increased but build spending dropped" due to larger networks increasing the necessary maintenance costs.

 

The deployment and operation of 4G LTE and 5G wireless networks depends on private market investment remaining strong. Subjecting mobile broadband networks to public utility regulation – as the FCC proposes in its Draft Order to be considered for a vote at the agency’s April 25 meeting – would undermine the ability of wireless infrastructure owners and operators to use their property and generate returns. This would reduce incentives to build and upgrade such infrastructure. The 2018 Restoring Internet Freedom Order found that the imposition of public utility regulation under the now-repealed 2015 Title II Order inhibited investment: 

The Commission has long recognized that regulatory burdens and uncertainty, such as those inherent in Title II, can deter investment by regulated entities and, until the Title II Order, its regulatory framework for cable, wireline, and wireless broadband Internet access services reflected that reality. This concern is well-documented in the economics literature on regulatory theory, and the record also supports the theory that the regulation imposed by Title II will negatively impact investment. The balance of the evidence in the record suggests that Title II classification has reduced ISP investment in broadband networks, as well as hampered innovation, because of regulatory uncertainty. The record also demonstrates that small ISPs, many of which serve rural consumers, have been particularly harmed by Title II. And there is no convincing evidence of increased investment in the edge that would compensate for the reduction in network investment.  

Imposing restrictions on 5G network slicing – either by outright prohibitions or by regulatory uncertainty under the vague "general conduct" standard contained in the Draft Order – also would be detrimental to wireless innovation and investment, including investment in the physical infrastructure that supports 5G uses. For more on this topic, see Free State President Randolph May's and Senior Fellow Andrew Long's April 2 Perspectives from FSF Scholars, "The 'Network Slicing' Debate Exposes How Title II Will Kill Innovation." Also, check out FSF President May's FSF Blog post from April 18: "Don't."

Senate Bill Would Improve Permitting for Broadband Projects on Federal Land

On September 21, Senators John Barrasso and Kyrsten Sinema introduced the Closing Long Overdue Streamlining Encumbrances to Help Expeditiously Generate Approved Permits (CLOSE THE GAP) Act. The purpose of the bill is to make permitting processing faster and more efficient for broadband infrastructure projects on federal lands.

Among other things, the CLOSE THE GAP Act would require federal land management agencies – namely, National Park Service, Bureau of Land Management, Bureau of Reclamation, U.S. Fish and Wildlife Service, Bureau of Indian Affairs, and Forest Service  – to adopt new rules for streamlining the process for considering and approving broadband project applications on federal lands. Within a year of the Act becoming law, the Secretary of the Interior would be required to adopt regulations that, the maximum practical extent, require federal land management agency permitting processes be "uniform and standardized." Also, the regulations must require that applications to locate or modify broadband facilities must be granted on a "competitively neutral, technologically neutral, and nondiscriminatory basis." And agency cost recovery fees for locating or modifying facilities must be cost-based. 

 

Additionally, the CLOSE THE GAP Act would make it easier to monitor the status of broadband infrastructure projects by making those projects trackable under the Permitting Dashboard that was established pursuant to the Fixing America's Surface Transportation (FAST) Act of 2015. The Permitting Dashboard is "an online tool for Federal agencies, project developers, and interested members of the public to track" federal environmental reviews and authorization processes for "large or complex infrastructure projects." Additionally, the bill would establish online portals for submissions of Standard Form-299 Applications (SF-299s), which are standard forms required by federal land management agencies in applying for access to rights-of-way, leases, licenses, or permits involving federal lands. 

 

Furthermore, the CLOSE THE GAP Act includes exemptions from the National Environmental Policy Act for broadband infrastructure on federal lands that previously received permit approval as well as exemptions from NEPA and the NHPA for collocations of radio towers on existing towers as well as for removal or replacement of radios on existing towers. These exemptions and others included in the bill would reduce likely unnecessary permitting expenses and delays in building out broadband infrastructure.

 

The permitting process reforms included in the CLOSE THE GAP Act are particularly important in western states like Wyoming and Arizona, where large geographic areas are designated as federal lands. In the past few years, Congress has dedicated over $100 billion to expanding access to broadband services, including about $65 billion in the Infrastructure Investment and Jobs Act of 2021. In order to help ensure that those substantial sums are spent timely and efficiently to bring broadband access to unserved and underserved areas, improved permitting processes should be a priority of Congress. Senators Barrasso and Sinema are to be applauded for introducing the bill. The Senate should give the legislation timely consideration. 

 

The House of Representatives has pending legislation that would streamline permitting processes for broadband deployments on federal lands. For more, see my FSF Blog post from April 23 of this year, "Subcommittee Looks at Legislation Promoting Broadband Infrastructure Buildout," and my May 2023 post, "House Committee Passes Reforms for Broadband Infrastructure Siting on Federal Property." 

 

(Note: A Senate bill number for the CLOSE THE GAP Act has yet been provided. This post will be updated with the number and link to the filed bill when it is made available.) 

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." 

Survey Shows Big-Time Growth in 2022 for 5G Devices and Home Broadband

On July 25, CTIA released its 2023 Annual Survey. Survey highlights are posted on CTIA's website. It shows the remarkable growth in wireless services that took place in the U.S. during 2022.  

The survey highlights show that 2022 was a record-breaking year for wireless data traffic growth, as U.S. wireless networks supported 73.7 billion MB of traffic last year. That total was 20 trillion MB – or 38% more – than in 2021. Total wireless traffic for 2017 was 15.7 trillion MB. Additionally, annual wireless investment climbed to an industry record $39 billion in 2022, up from $35 billion in 2021. This marks the continuation of a series of annual increases in capital investment, going back to 2017, when annual investment totaled $26 billion. According to CTIA, over its history (presumably dating back to the early 1990s), the wireless industry has invested over $675 billion.

CTIA's 2023 Survey Highlights also revealed stunning growth in wireless connectivity, especially for 5G devices. At year's-end 2022, there were about 523 million connected wireless devices and 162 million active 5G devices. Those numbers are up significantly from 2021, when connected wireless devices totaled 499 million and active 5G devices totaled 86 million. Between the end of 2021 and 2022, here was a near doubling of 5G connected devices. 

The survey also shows that 2022 was a huge year for 5G home broadband. According to the survey highlights, 5G home broadband now covers more than 94 million U.S. households, and that 5G home broadband accounted for 90% of net broadband additions last year. The survey also contains 2022 figures regarding small cells, price per MB, and text. 

The continuing success of wireless services in the U.S. owes, in significant part, to a pro-investment, pro-competition, light-touch regulatory policy that dates back to the early 1990s.  Thirty years ago, Congress authorized competitive bidding spectrum license auctions and preempted state regulation of rates and entry as well as state and local government permit and zoning decisions on infrastructure citing that have the "effect of prohibiting" wireless services. To ensure the continued success of 5G services in the U.S. Congress should take action in 2023 to advance legislation such as H.R. 3557, the American Broadband Deployment Act of 2023, to clear away obstacles to timely infrastructure. Also helpful to promoting broadband deployment, including wireless broadband, are a slate of bipartisan bills for streamlining infrastructure deployment that were passed by the House Energy and Commerce Committee in May of this year and highlighted in a May 24 blog post. And as FSF Senior Fellow Andrew Long explained in a July 21 blog post, "Congress Should Reinstate the FCC's Spectrum Auction Authority" by passing H.R. 3565, the Spectrum Reauthorization Act of 2023. 

House Committee Passes Reforms for Broadband Infrastructure Siting on Federal Property

At its May 24 markup hearing, the House Energy and Commerce Committee passed, with unanimous votes, five bills intended to streamline permit processing for constructing infrastructure for broadband use on federal land and property: 

The Standard Fees to Expedite Evaluation and Streamlining Act (Standard FEES Act), if passed by Congress, would direct the General Services Administration (GSA) to establish a common fee schedule for applications to build communications sites on federal property. The Act would require each executive agency to adopt regulations that align with the common fee schedule. 

 

The Expediting Federal Broadband Deployment Reviews Act would authorize the NTIA to establish an interagency "strike force" to ensure that each Federal land management agency "prioritizes the review of requests for communications use authorizations." The strike force would conduct periodic calls among those agencies and monitor their progress. And within 270 days after the Act becomes law, the NTIA would be required to submit to Congress a report on "the effectiveness of the strike force in ensuring that Federal land management agencies prioritize reviews of requests for communications use authorizations. 

The Federal Broadband Deployment Tracking Act would require the NTIA to submit to Congress a plan for the agency to track requests for communications use authorizations on federal property and provide transparency to applications regarding the status of their applications.

 

The Deploying Infrastructure with Greater Internet Transactions and Legacy Applications (DIGITAL Applications Act) would require the Interior and Agriculture Departments to set up online portals to accept, process, and dispose of common form applications to deploy communications facilities on federal property. 

 

The Facilitating DIGITAL Applications Act would require the NTIA to provide Congress with reports on whether the Interior and Agriculture Departments have, in fact, established online portals for accepting form applications.  

 

Taken together, these bills have the potential to streamline application processes for construction of broadband facilities and to improve broadband coverage across America. Although many reforms to broadband infrastructure siting processes have focused on state and local regulatory barriers to building and significantly upgrading facilities, the foregoing reform bills passed by the House Energy and Commerce Committee direct efforts to deployments on federal property. This is a needed area of attention. And reforms targeting infrastructure siting on federal property do not present the structural federalism and local control issues that frequently are posed by federal preemption of state laws. The House Energy and Commerce Committee deserves credit for addressing communications infrastructure siting on federal property, and the House of Representatives should now do its part to advance these bills. 

Subcommittee Looks at Legislation Promoting Broadband Infrastructure Buildout

On April 19, the U.S. House Communications & Technology Subcommittee held a hearing titled "Breaking Barriers: Streamlining Permitting To Expedite Broadband Deployment." On the legislative agenda for the hearing was some 30 Republican discussion draft bills and two Democratic bills. The subcommittee's attention to the importance of policies that promote the construction and upgrade of broadband infrastructure – and that eliminate unreasonable barriers to building new facilities and upgrading existing ones – is welcome.

No doubt there are geographic, population, and other economic conditions that play into timely broadband deployment. But careful attention to permitting and other regulatory policies regarding wireline and wireless broadband infrastructure buildout should be a component of a pro-market, pro-innovation, pro-investment federal policy for encouraging broadband access for all Americans.

Information about those legislative measures is contained in the hearing memo that available on the subcommittee's webpage. The high number of draft bills and bills precludes specific discussions particular each one, but several such bills previously have been introduced in Congress, at least in substantially similar form. The legislation under review at the hearing included streamlining the approval process for deploying infrastructure on federal lands, imposing shot clocks for decisionmaking on infrastructure permit applications by local permitting authorities, and legislative codification of specific infrastructure citing reforms adopted by FCC. 

 

Hopefully, the House Communications & Technology Subcommittee's hearing will be the prelude to a near-future advancement of legislation that will boost enable more timely deployment and reduce unnecessary harmful obstacles to next-gen broadband buildout. 

 

The Chairman of the House Communications & Technology Subcommittee is Rep. Bob Latta, who delivered a keynote address at the Free State Foundation's Fifteenth Annual Policy Conference – #FSFConf15 – held on March 28. Video of his keynote is available online. 

 

For publications by Free State Foundation scholars on infrastructure siting reforms, see the June 2022 Perspectives from FSF Scholars, "The FCC Should Preserve and Expand Its Broadband Infrastructure Reforms" by former FSF colleague Andrew K. Magloughlin and I. Also still very relevant today is the July 2021 Perspectives from FSF Scholars, "Real Infrastructure Opportunity for Congress: Speed Deployments of 5G Network," co-authored by FSF President Randolph May and I. Additionally, in a June 2021 Perspectives from FSF Scholars, FSF President May and I address fundamental legal issues connected to this topic in "Wireless Infrastructure Reforms Rest on Solid Constitutional Foundations: Congress Should Preempt Local Obstacles to 5G Deployment."

Report: Wireless Benefits U.S. Economy

On December 7, CTIA published a report by Compass Lexecon titled "The Importance of Licensed Spectrum and Wireless Telecommunications to the American Economy." The report spotlights the economic output and job creation enabled by wireless services between 2011 and 2020:

The substantial investments in licensed spectrum and infrastructure during the past decade have allowed the industry to deliver wireless services to hundreds of millions of consumers throughout the U.S., contributing nearly $9.5 trillion in gross output and $5.4 trillion in GDP to the American economy, and employing an annual average of more than three million people… In 2020 alone, the wireless industry contributed over $1.3 trillion in gross output, $825 billion in GDP, and nearly 4.5 million jobs to the American economy. 

These trillions in output and millions of jobs include the direct effects of the core wireless industry (mobile network operators and resellers) on the economy, as well as the secondary effects of the wireless supply chain and select downstream market segments that rely heavily upon wireless and mobile broadband services (including smartphone app developers, search engines, digital advertising agencies, mobile gaming, and social networking sites). It does not take into account the contributions made by other sectors that also depend on and use wireless services that could represent hundreds of billions in additional gross output and GDP, as well as millions of workers. Therefore, the estimates presented in this study are a baseline, or lower bound, for the contributions made by wireless- related sectors to the American economy. 

The decade's impressive economic output and job creation spurred by the wireless industry depended upon wireless network operator investment of $265 billion in infrastructure during that same period of time. Moreover, "[b]etween 2011 and 2020, spectrum auctions pertaining to wireless services have raised $155 billion in auction revenues."  

Compass Lexecon's report cites many other pro-consumer results from the strong private sector investments made in wireless networks between 2011 and 2020, including significantly expanded competing network coverage, mobile wireless download speed increases, mobile data traffic growth, and downward pricing trends. The report thus provides a reminder of the importance of maintaining a free market-oriented light-touch regulatory framework for wireless broadband services that promotes private investment and innovation. 

Acknowledging that demands for mobile wireless services is expected to increase significantly in the years ahead, the report presents a key policy takeaway for ensuring that wireless providers can meet those future demands: 

For the wireless industry to continue to provide these considerable, widespread positive effects to the American economy, it is necessary to provide mobile network operators access to dedicated, licensed spectrum. It is also important to allow potential licensees to compete to acquire the spectrum licenses, and, once acquired, to allow the licensees to determine the optimal allocation and usage of that spectrum in the economy based on economic market forces. 

The report doesn't analyze any specific bands. But as public debate continues regarding whether exclusive licensed and shared spectrum frameworks ought to be established by Congress or by the FCC for future commercial spectrum allocations, the findings contained in Compass Lexecon's report deserve careful consideration alongside facts, data, and analysis offered by parties with other viewpoints. 

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. 

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.

Accenture Reports on the Potential for 5G Fixed Wireless Access in Rural America

A report released on November 18 by Accenture titled "5G Fixed Wireless Broadband: Helping Close the Digital Divide in Rural America." The report identifies the potential of next-generation fixed wireless services to provide capacious and high-speed broadband Internet services in hard-to-reach geographical areas. According to the report: "By leveraging advances in wireless network technologies like 5G, an FWA connection can potentially deliver sustained download speeds, through the air, of 1 Gbps up to four miles." Also, “[a]s advanced 5G technology rolls out with high-band spectrum, FWA will have 10 to 100 times more capacity than 4G" and "future 5G-enabled FWA services will provide ultra-reliable service with under 10 millisecond latencies that are critical to many emerging 5G use cases." Accenture estimates that 8.4 million households – that is, 43% of rural households – could be served by at least one 5G fixed wireless access provider in the near-term future. 

To obtain the benefits of fast 5G deployment, Accenture's report recommends more mid-band spectrum in the lower 3 GHz band be repurposed for commercial use. And it recommends additional streamlining of regulatory processes such as zoning for infrastructure permit approvals. Those are sound recommendations that Congress and the FCC ought to take seriously if they are truly serious about reaching underserved Americans. 

For further insights on policy actions needed to expand broadband access to all Americans, see my Perspectives from FSF Scholars from February of this year titled "Fast Action on the Lower 3 GHz Band Will Secure Americas 5G Future." And also check out "Real Infrastructure Opportunity for Congress: Speed Deployment of 5G Network," a Perspectives that I co-authored by Free State Foundation President Randolph May.
 

Court Rightly Sides with Wireless Provider in Dispute over Rights-of-Way

The U.S. District Court for the District of New Mexico's June 28 order in NMSURF, Inc. v. State of New Mexico Department of Transportation provides yet another example of the necessity of Section 332(c) of the Communications Act and federal preemption of state and local government actions that obstruct construction and modification of wireless infrastructure. At issue in the case is a New Mexico agency's denial of wireless service provider NMSURF's application to construct two utility poles in rights-of-way regulated by the state. 

NMSURF filed its permit applications on November 24, 2020, but they were rejected by a letter from December 23 of that year. The New Mexico agency's short letter claimed that NMSURF was not a "public utility" eligible for free use of the right-of-way. A lawsuit followed, as NMSURF claimed that the denial of its applications violated Section 332(c)(7)(B)(iii), which requires that any denial "shall be in writing and supported by substantial evidence contained in a written record."

According to the District Court: "Plaintiff alleges, and Defendant does not contest, that the Denial Letter contains no evidence in support of the assertion that Plaintiff is not eligible for the requested permits because it is "not a public utility rendering essential services subject to consumer-rate regulation by the Public Regulatory Commission.'" 

The District Court added: 

Defendant’s Denial Letter falls well short of providing any evidence, let alone substantial evidence, in support of its denial of Plaintiff’s permit applications. Defendant provides no criteria for its denial beyond conclusory statements relating to Plaintiff’s supposed status as a non-utility. Defendant has done nothing to rebut the evidence proffered by Plaintiff that it is in fact a proper utility within the statutory meaning and that it appropriately adhered to application procedures. The Denial Letter did not proffer any objections to Plaintiff’s plans or construction designs. In fact, it does not offer any concerns beyond the supposed status of Plaintiff as a non-utility... 

The Denial Letter states that Defendant has 'entered into rulemaking to promulgate a new telecom-broadband section to NMAC 17.4.2...' but Defendant provides no indication that any rules have actually been issued or what the substance of the purported new rules would be. Thus, the Court finds that Petitioner has shown a substantial likelihood of prevailing on the merits and concludes that Defendant's denial of Plaintiff’s permit applications violates the provisions of § 332(c)(7)(B)(iii) in its failure to provide substantial evidence in its denials. 

In this case, wireless service provider NMSURF scored a decisive win with the court issuing a preliminary injunction against the New Mexico agency. The District Court's decision shows the importance of federal law's bar on actions by state and local governments that have the effect of prohibiting the offering of wireless services – including actions that lack any written explanation or evidence for the state or local government's refusal to allow construction or modification of wireless infrastructure. 

Hopefully, other state and local government agencies will learn from the New Mexico agency's mistake and avoid taking similar actions when reviewing wireless infrastructure permit applications. Also, keep in mind the needless expenses the state agency incurred when it didn't have a leg to stand on in court, and also the economic opportunity costs resulting from the seven months it took before NMSURF received vindication in court. 

Supreme Court Order Ends Legal Challenge to FCC's Wireless Infrastructure Orders

On June 28, the U.S. Supreme Court denied certiorari in City of Portland v. FCC. Thus, the Court left undisturbed the August 2020 decision by the Ninth Circuit Court of Appeals that upheld most of the Commission's 2018 Small Cell Order, Moratoria Order, and One Touch Make-Ready Order. The Small Cell and Moratoria Orders defined limits on local governments' permitting authority regarding wireless infrastructure siting for small cells. And the OTMR Order established limits on local governments' discretion regarding pole attachments involving wireless networks. Those orders effectively removed local regulatory obstacles to deploying advanced wireless networks, including 5G networks.  

The Supreme Court's order is important because it leaves standing important circuit court precedent recognizing the preemptive authority of the FCC prohibit certain actions by state and local governments that effectively prohibit the offering of wireless communications services. That authority comes from the 1996 Telecommunications Act and the Constitution's Commerce Clause. The Court's order also leaves undisturbed the Ninth Circuit's rejection of Tenth Amendment-related anti-commandeering challenges to the Commission's rules regarding permitting fees, shot clocks for decisionmaking on permit applications, and moratoria on reviewing permit applications. The Ninth Circuit concluded (rightly) that the Commission's orders did not require state or local officials to take action to implement any federal regulatory scheme, but instead they secured a federal right to place and modify cell sites subject only to certain federal constraints. 

The Ninth Circuit's decision in City of Portland v. FCC was discussed in more detail in my September 2020 blog post. Free State Foundation President Randolph May and I also discuss the Ninth Circuit's decision as well as the Small Celland Moratoria Orders in our June 2021 Perspectives from FSF Scholars paper, "Wireless Infrastructure Reforms Rest on Solid Constitutional Foundations: Congress Should Preempt Local Obstacles to 5G Deployment."