Compound Expansions Order Could Be in Crosshairs of New FCC

One change the FCC could make to wireless infrastructure policies of the past four years after Democrats take control next week is October's rollback allowing streamlined processing of expansions for collocation deployments up to 30 feet outside macro tower compound boundaries. Commissioners Jessica Rosenworcel and Geoffrey Starks dissented (see 2010270043). Of the infrastructure changes adopted under Chairman Ajit Pai, that one could be the most vulnerable because it's the last to be approved and mechanisms are available to reverse it, local officials said in recent interviews.

Last week, municipalities and NATOA sought “reconsideration and rescission” of the order (see 2101050030). They said Rosenworcel’s dissent “makes the case clear” that the order can’t be squared with “the plain language” of 2012 Spectrum Act Section 6409(a). One option would be to approve the petition, though that's unlikely under a 2-2 FCC, experts said. If other groups lodge a legal challenge, the FCC could follow what it did under Pai in 2017, when it declined to defend inmate calling service intrastate rate caps that the previous Democratic majority instituted and defended other parts of the order (see (Ref:1701310061]), officials said.

Since localities that filed for recon have been the main opponents, it’s unclear whether anyone would challenge the order in court, said lawyers active in the proceeding. The parties seeking reconsideration would be free to seek review after the FCC makes a decision. The FCC didn’t comment Monday.

NATOA is waiting for the recon petition “to play out before contemplating a legal challenge," said General Counsel Nancy Werner. “That might mean waiting for a fifth commissioner, but given the strong grounds for reconsideration, we are hoping that the petition will not be put on the shelf for too long.”

“This rule change is not only important for next generation networks, but it is also important for public safety communications and resiliency by allowing additional space at the tower site for backup power,” emailed Wireless Infrastructure Association President Jonathan Adelstein. "The FCC conducted a full, open rulemaking with multiple rounds of public comment that informed the final rule,” he said: “This is now the law of the land, so it would send the wrong message to roll back successful efforts to win the race to 5G, which is a priority for the incoming Biden Administration.”

"Very forceful dissents” by Rosenworcel and Starks encouraged localities to petition, emailed Best Best’s Gerard Lederer, whose firm filed the document with NATOA. “We hope that our clients’ position has been strengthened” by the Georgia election results that gives Democrats control of the U.S. Senate, “but we don’t view this as a partisan issue as a large percent of our clients are majority GOP communities.” Werner agreed.

Many cities hope the new commission responds to the petition by vacating its order, Telecom Law Firm local government attorney Tripp May emailed. “A more realistic expectation is that a new Commission would hold the order in abeyance and re-open public comment.” May hopes the FCC proposes new rules or asks for alternatives.

Don’t expect sweeping reversal of previous FCC policies affecting local governments, May cautioned. “We all pretty much want the same things -- better, cheaper and more widely available services. Deregulation, while not a good answer to every issue, is not always an irrational way to achieve those goals.” Democrats previously supported deregulation, said May, noting the FCC under President Barack Obama opened the docket on Mobilitie’s petition, which led to the outgoing FCC’s small-cells order.

Localities hope for “positive changes in federal communications structure and policy” on many issues, including the FCC reconsidering its wireless compound expansion order, emailed Cohen Law’s Daniel Cohen, a locality lawyer in Pennsylvania. “Recognize local governments as a partner in achieving digital equity, protecting local authority in managing its rights-of-way, supporting community media and elevating the public interest.”

Local government attorney Ken Fellman hesitated to say a 3-2 commission “would necessarily be the start of policy reversals affecting local governments,” he emailed. “It might, but those are always big lifts, regardless of who is in power.”