United States: If They Could Be All You Wanted: The FCC Gets Serious About Small Cells

Say what you will about inside-the-Beltway leadership vacuums, political gridlock and the indecipherable output from the grey, grinding gears of our government agencies, but once in a while Washington actually gets it right.  Or mostly right.

Take, for example, the FCC's so called Small Cell Infrastructure Report & Order1 released on October 21, 2014, in which the FCC clarified that certain kinds of wireless facilities – such as small cells and related distributed antenna systems ("DAS") – are excluded from some existing environmental and historical review regulations, and put into place a number of other measures intended to speed the installation of wireless infrastructure.

Much of the FCC's time and energy these days is devoted to determining whether the "Public Interest" permits AT&T's acquisition of DirecTV, or Comcast's acquisition of Time Warner Cable, or Charter Communications' acquisition of certain Time Warner Cable properties (if Comcast is allowed to acquire Time Warner Cable).  The FCC, also, is wrestling with truly weighty decisions such as (i) whether to regulate broadband Internet access services under traditional common carrier, or Title II regulatory models, and (ii) planning for and managing the two important, looming spectrum auctions.  But, despite these heavy lifts, the FCC has managed to find the time to release a remarkably thoughtful and – for consumers and the electronic communications industry alike – potentially very helpful new set of rules designed to speed mobile broadband deployments to keep pace with our insatiable and growing thirst for connectivity and bandwidth.

Starting with the truism that spectrum without infrastructure is as about as useful as, well, infrastructure without spectrum, the FCC cites some eye-opening facts and statistics:

  • A recent CDC report found that 41% of US households had only wireless phones;
  • More than half of all adults in poverty live in wireless-only households;
  • By the end of 2015, Americans will have more than 34 million broadband devices, a 50% increase from 2013;
  • Data traffic will increase eight-fold between 2013 and 2018.

In addition to the obvious "digital divide" concerns to which some of these data speak, even the FCC has acknowledged that next-generation technologies like 5G may operate in dramatically higher frequency bands - i.e., millimeter wave spectrum above 24 GHz – which is well suited to the kind of heterogeneous network architectures that are driven by small-cell and DAS deployments.  (Besides, large towers and macrocells are so 1990s – and not solely because securing local zoning approval for new cell towers makes the construction of the Great Pyramids seem like a Saturday morning Lego project with your 10-year-old).

For all these reasons the future, people, is in these next-generation networks.  The various forms, functions, and flavors of small-cell and DAS deployments – dedicated, single-carrier, turnkey, and shared host; installed on buildings, towers, light poles, utility poles, cable television systems, and fake plastic trees – is the future of broadband and the Internet.  Or so it would seem.

The FCC has had its missteps to be sure, but for the better part of 40 years when the little cable industry that could was first gathering steam, but before it truly began delivering on the promise to become the first real competitor to Ma Bell, the FCC has been remarkably consistent – and remarkably successful – at promoting the deployment of new, competitive electronic communications infrastructure.  And it looks like the FCC may have done it again.

The FCC's most important rulings relate to outdoor deployments.  In particular, the Commission's actions can be briefly summarized as follows:

Environmental Review

  • Amending the existing regulations under the National Environmental Policy Act ("NEPA") to clarify that exclusions for collocations on buildings and towers (i) includes equipment associated with the antennas, and (ii) also includes colocations in a building's interior.
  • Amending the NEPA categorical exclusion for collocations to cover collocations on structures other than buildings and towers (e.g., poles, water tanks, and road signs).
  • Streamlining environmental review under NEPA by creating a new categorical exclusion for deployments of wireless facilities in existing utility or communications rights-of-way.

Historic Preservation

  • Streamlining historical review by creating exclusions for collocation of additional facilities on existing utility infrastructure, including utility poles and transmission towers, that meet certain conditions (e.g.,the antenna and equipment meet certain size limitations, there will not be a new ground disturbance, and the deployment is not in a historical district or on a historic building).
  • Excluding collocations on buildings and non-tower structures that meet certain conditions (e.g., there is an existing antenna on the structure, compliance with zoning conditions, certain visibility and proximity restrictions, no new ground disturbances, and the deployment is not in a historical district or on a historic building).

Local Review

  • Exempting temporary (<60 days) antenna structures from local and national environmental notification requirements.
  • Clarifying certain language in Section 6409(a) of the Spectrum Act to eliminate ambiguities in interpretation and thus facilitate the zoning process for collocations and other modifications to existing towers and base stations.
  • Clarifying that the 2009 "Shot Clock" rules mandating consideration of siting applications in a "presumptively reasonable timeframe" also apply to applications related to small-cell and DAS deployment, and providing stricter standards for local review and processing of such applications.

But not everyone will be happy with the FCC's new rules, and the FCC could have gone even farther than it did without legal, if not exactly political, backlash.  Just the same, local governments will view the FCC's action as an unwarranted and unlawful incursion into matters of uniquely state and local concern.  (Spoiler alert: phrases just like this will be salted throughout the legal papers that local governments will file in the inevitable appeals of the FCC's Order).  As with any broad, affirmative regulatory initiative serving a vital, if not critical policy imperative, many details will be left to stakeholder negotiations, the marketplace and – in some instances – the courts.  And while there will be unintended consequences, the results of the FCC's action will be tangible and measurable: a significant proliferation of small-cell and DAS deployments (some that will be noticed and some that will be camouflaged, obscured, or easily overlooked), and vastly increased – and hopefully improved – service on our Nation's mobile broadband networks.

So while the FCC grapples with whether the "Public Interest" means that AT&T should acquire DirecTV, or Comcast should acquire Time Warner Cable, or whether the Internet should be regulated like the bakelite-black rotary phone that sat for 50 years on the side table in your grandparents' parlor, the FCC has quietly taken a step that actually will make a difference, and that actually will serve the "Public Interest" to boot.

For more information about the FCC Small Cell Infrastructure Order, please contact a Sheppard Mullin communications lawyer.

 Footnote

1 Acceleration of Broadband Deployment by Improving Wireless Siting Facilities, Report and Order, WT Docket No. 13-238, et. al., FCC 14-153 (rel. Oct. 21, 2014), a copy of which is available here.

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