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."

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.

The FCC Should Encourage Further Progress in 5G Infrastructure Siting

On September 25, TRDaily reported on FCC Commissioner Brendan Carr's remarks at the 8th Annual Americas Spectrum Management Conference. According to TRDaily reporter Paul Kirby's account, Commissioner Carr stated that FCC orders for streamlining wireless infrastructure siting have produced "dramatic results," including an increase in small cells from 13,000 in 2017 to 60,000 last year – with a total of close to 200,000. In a panel discussion that followed, CTIA's Scott Bregmann reportedly cited an estimate that over 800,000 small cells would be needed by 2026. Apparently, 28 states have adopted laws for streamlining deployment of small cells.

In 2017, FSF President Randolph May and I filed public comments urging the FCC to adopt rules to accelerate deployment of small cells needed for 5G (and for 4G network densification) by prohibiting local regulatory obstacles. There is more that the Commission can do to encourage infrastructure deployment, including clarifying the law for collocations and non-substantial modifications to existing cell towers and base stations. For more on this, see my Perspectives from FSF Scholars paper, published on September 25th, titled "FCC Should Clear Local Obstacles to Wireless Infrastructure Upgrades." The Commission can also adopt its proposal to update its Over-the-Air-Reception-Devices (OTARD) rule to remove obstacles to placement of 5G-related equipment. 

Representative Eshoo's New Bill Would Slow 5G Deployment

On January 15, 2019, Representative Anna Eshoo (D-CA) introduced the "Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019" (H.R. 530), which would overturn FCC rules that preempt local government regulations on the deployment of 5G infrastructure.

As I illustrated in a September 2018 infographic, the FCC's Wireless Infrastructure Order facilitated 5G deployment by reducing unnecessary regulatory barriers and limiting unjustified fees imposed by local governments. One study by CMA Strategy found that the FCC’s Order will increase broadband infrastructure investment by $2.4 billion and deploy next-generation access to an additional 1.8 million homes and business, of which 97% will be concentrated in rural and suburban areas.

By overturning the FCC's Order, Representative Eshoo's bill would enable local governments to levy excessive fees and lengthy regulatory processes on broadband providers, slowing the deployment of 5G technology and delaying the creation of 5G’s massive economic benefits.

FCC Wireless Infrastructure Order Will Spur 5G Deployment