Mobile networks in a global economycan be achallengefor multiple reasons. First, governments in other countries control the mobile networks. Second is the technology. Mobile networks in other countrie

Mobile Broadband Technology—a Brief History Mobile broadband technology’s first genera- tion (i.e., 1G 1) appeared in the 1980s and fea- tured analog telecommunications. Its second generation (i.e., 2G) debuted in the early 1990s and introduced digital phone calls and SMS 2 text messages. The early 2000s ushered in the third generation (i.e., 3G), which delivered high-speed internet and multi-media applications. 3 In 2011- 2012, the fourth generation (i.e., 4G and 4G LT E 4) emerged and featured improved down- load/upload speeds, reduced latency, and crystal clear voice calls. The world is moving beyond 4G and into the infancy of mobile broadband’s fifth generation (5G).

Experts forecast that 5G will revolutionize and fundamentally transform the internet and, conse- quently, our lives. 5G’s three primary benefits will be: • Exponentially more rapid data transfer speeds, resulting in markedly faster content transmission and download times; • Dramatically reduced lag times, resulting in no- delay and glitch-free content streaming; and • Substantially increased connectivity and capac- ity abilities, resulting in more users and devices communicating simultaneously.

To gain 5G market share and meet expected consumer demand, wireless carriers and wireless infrastructure providers 5 are working furiously to obtain rights and approvals to construct, install, and begin operating their 5G infrastructures as quickly as possible. However, state and local governments have not moved at the same fast pace as carriers and infrastructure providers and, consequently, are often impediments to swift, optimal, or any 5G infra- structure deployment at all. Accordingly, in order to facilitate Americas’ continuing global leadership in mobile broadband technology, the federal govern- ment has begun asserting itself to encourage and facilitate America’s swift and optimal 5G infrastruc- ture buildout. This article addresses: 5G technology’s impor- tance; 5G technology infrastructure basics; state and local laws impacting 5G deployment; and the fed- eral government’s proactive steps to encourage and facilitate 5G deployment.

5G Technology Is the Propellant for the “Internet of Things” and Smart Cities Internet of Things 5G’s power will propel the “Internet of Things” (IoT) to technology’s forefront. The IoT is a giant, William M. Lawrence is an attorney practicing in the Birmingham office of Burr & Forman LLP, where his practice focuses on corporate transactional law for a wide range of commercial businesses and wireless telecommunications law for wireless carriers, cell tower owners, and other service providers in the wireless industry. Matthew W. Barnes, a partner at the firm practicing in the Raleigh, North Carolina, office, focuses on mergers and acquisitions, business planning, general business and corporate matters, and representing infrastructure providers and other service providers in the wireless industry. The authors may be reached at [email protected] and [email protected], respectively. 4 Intellectual Property & Technology Law Journal Volume 31 • Number 5 • May 2019 rapidly growing network of internet connected devices, which have embedded sensors that collect and share data through closed private internet con- nections. To date, the world has merely peeked at the IoT’s promise.

Common IoT devices with which consumers are familiar include:

• Smart speakers and voice-controlled intelligent assistants, like Amazon’s Echo device and the related Alexa app; • Smart watches, like the Apple Watch; • Fitness bands, like the FitBit; • Smart household controllers, like the Nest Learning Thermostat; • Smart appliances, like LG’s SmartThinQ line of refrigerators; • Home security systems, like the wireless Blink Alarm and Ring Video Doorbell; and • Autonomous cars, like Tesla’s driverless automobiles.

The IoT should benefit consumers by provid- ing conveniences, enhanced experiences, greater efficiencies, increased insights, and responsive serv- ices. Similarly, the IoT should benefit businesses by giving them access to greater data about their customers, products, services, and internal systems, which will allow them to respond and adapt easier and quicker.

Smart Cities 5G and the IoT are expected to transform cit- ies across the world into “smart cities.” An umbrella term, “smart cities” refers to cities that use informa- tion and communication technologies to drive economic growth, increase operational efficiencies, share information publicly, improve government services, and enhance public welfare. Smart city technologies include:

• Automated traffic management systems, which monitor and analyze traffic flow to optimize traf- fic signals and prevent congested roadways; • Parking meter connected apps, which help driv- ers locate available parking spaces convenient to their destinations; • Citizen reporting apps, which allow citizens to report issues like traffic accidents and vandalism directly and instantaneously to applicable city departments; • Crowdsourcing data collections from large num- bers of citizens, tourists, and other visitors via the Internet to analyze their ideas, activities, and habits; and • Digital utility monitoring, which more quickly and effectively mitigates service issues and outages.

5G will help unlock the currently unknown potential of smart cities and the resulting economic, lifestyle, and other benefits to those smart cities and their citizens.

5G Infrastructure—a Shift from Cell Towers and Other Macrocell Sites to Small Cell Sites 5G networks require infrastructures differ- ent than past mobile broadband technologies.

Ubiquitous and foundational cell towers 6 were the building blocks of prior broadband generation infrastructures, because they and other high-pow- ered “macrocell” sites 7 transmit signals great dis- tances, cover vast geographic areas, and provide the widest coverage radiuses of all cellular technologies.

Each cell tower has the additional benefit of being able to accommodate the “collocation” 8 of multiple carriers’ cellular networks. 9 Small wireless facilities (commonly known as “small cells” 10) supplant cell towers and other mac- rocell sites as 5G infrastructures’ building blocks.

Small cells will not replace macrocell sites—instead, small cells will supplement them. Small cells are low-powered, short-range, low- cost, self-contained cell site nodes, which typi- cally consist of single antennas and supporting transmission equipment that connect back to a carrier’s network. Although small cells are smaller in power and coverage radius than macrocell sites, small cells are also substantially smaller than macrocell sites, which makes small cells more Volume 31 • Number 5 • May 2019 Intellectual Property & Technology Law Journal 5 discrete and aesthetically pleasing. Typical small cell enclosures are no more than six cubic feet in volume, and most associated wireless equipment is cumulatively no more than 28 cubic feet in volume.

Small cells permit carriers to expand their net- work coverages and capacities without investing in new, costly, land-intensive infrastructures. Carriers simply deploy small cells on a variety of existing or installable structures, including poles (e.g., street lights, traffic lights, utility poles, 11 and street signs), billboards, and the sides of buildings. Due to their existing uses and resulting conveniences, pub- lic rights-of-way are generally preferred small cell deployment locations. 12 Wireless carriers currently use limited deploy- ments of 4G technology small cells to support their ever-increasing network capacities. Prominent small cell installations already in use include deployments in:

• Concentrated population areas, where pop- ulation density prevents a cell tower or other macrocell site from providing optimal service; • Topographically challenging areas, where cover- age is needed; • Areas zoned in ways that make cell towers and other macrocell sites impractical or impossible; • Mass transportation modalities that travel to remote locations (e.g., cruise ships and commer- cial airliners); and • Congregational commercial settings (e.g., hotel lobbies, sport stadiums, and office buildings).

At present, the United States has approximately 200,000 operational small cell installations. 13 However, to accommodate 5G’s more intensive demands, carriers and infrastructure providers are beginning to deploy a far more muscular small cell infrastructure in strategically located geo- graphic polygons across the country. According to one expert, 5G’s success will require more than 800,000 installed and operational small cells by 2026. 14 The United States’ Emergence to Global Mobile Broadband Leadership and Resulting Economic Significance The United States is the world’s current mobile broadband leader. However, its global preeminence is a recent development. Europe was the 2G global leader, and Japan succeeded Europe as the 3G global leader. The United States’ ascendency to global leadership occurred once 4G emerged. American companies led the United States’ global 4G dominance. For example:

• FAANG—an acronym for U.S. based technology companies Facebook, Apple, Amazon, Netflix, and Google—caused Wall Street investors to move their money away from big banks and oil companies; • Square, Venmo, and SnapCash usurped traditional banking functions, like sending or depositing money, and brought them directly to consumer smart phones; and • Uber, Lyft, and Via transformed practically over- night a decades old mass transportation model.

American-led 4G innovations spurred significant economic growth. 4G innovations created almost $100 billion of the GDP’s annual increase by 2016, increased wireless-related jobs by 84 percent from 2011 to 2014, and increased American companies’ revenue approximately $125 billion (including more than $40 billion in additional revenue due to app stores and app developers). 15 Experts forecast that 5G technology will boost our economy to heights that dwarf the gains all prior mobile broadband technologies combined have created. An Accenture (NYSE: ACN) study forecasts that 5G will usher in three million new jobs, $275 billion in private investment from wireless operators, and $500 billion in economic growth. 16 5G Infrastructure Deployment—The Impact of State and Municipal Laws State and municipal laws have significant impacts upon small cell deployments and the resulting 5G availability and quality these states’ and munici- palities’ citizens can and will experience. Too often, these laws affect small cell deployments in short- sighted and counter-productive ways. 6 Intellectual Property & Technology Law Journal Volume 31 • Number 5 • May 2019 State Law As a recently passed Texas law declared in its pol- icy findings, “The timely permitting of network nodes in the public right-of-way is a matter of state- wide concern and interest….” 17 For this and simi- lar reasons, at least 20 states have passed small cell laws. 18 State small cell laws generally have three main purposes:

1. They cap collocation rates and public right-of- way access fees; 2. They effectively restrict or limit municipal ordi- nances; and 3. They dictate how cities may regulate small cell deployments.

Cities wanting to charge higher fees than appli- cable state laws allow have little recourse except to file litigation to challenge the state laws. 19 Despite the state laws intending to spur small cell deploy- ments, the uncertain regulatory environment cre- ated by state and local government conflicts may well slow small cell deployment.

Municipal Laws Cities present two main stumbling blocks to small cell deployment—they either have not enacted small cell deployment ordinances or regulations, or they often rely wrongly upon inapplicable laws passed originally to govern macrocell sites.

(i) No Municipal Small Cell Ordinance / Lack of Preparedness All cities have valid interests that reasona- ble deployment statutes can address and protect, including:

• Providing greater IoT access to their citizens; • Earning revenue by charging application fees, construction permit fees, and right-of-way access fees; • Earning revenue from rents or license fees for small cell installations on city-owned proper- ties (e.g., traffic lights, street lights, and street signs); • Protecting their jurisdictions by controlling noise and visual and design aesthetics; • Enforcing zoning restrictions; • Managing and assuring public safety and accessi- bility; and • Controlling the permitting of what is deployed within their jurisdictions.

To address and protect their municipal interests in connection with small cell deployments, cities often rely upon existing ordinances and regulations the cities adopted to govern cell tower and other mac- rocell installations. Because macrocell installations are significantly different than small cell installa- tions, existing macrocell ordinances are inadequate, misused, and often have unintended enforcement consequences. Consequently, those cities are sim- ply ill-prepared to administer and process small cell applications and facilitate small cell deployments. Due in part to their lack of small cell ordinances and mis-reliance upon inapplicable macrocell installation ordinances, the ill-preparedness of cities for small cell deployments has significant and often unintended consequences, including the following:

• Extraordinarily lengthy application review peri- ods, similar to cell tower and other macrocell site review periods—often between one to two years; • Fractured or partial approvals of geographic pol- ygon design plans for small cells deployments, which result in either (i) fewer small cells being deployed than a carrier’s or infrastructure pro- vider’s buildout plans contemplate or (ii) due to the reduced small cell quantities approved, less than optimal 5G coverage; and • Cumbersome and unnecessary multi-level, dis- cretionary review and approval processes, includ- ing, among others, neighborhood associations, planning commissions, zoning commissions, and city councils.

Although carriers and infrastructure providers are generally willing to work with cities and often suggest balanced model ordinances for cities to Volume 31 • Number 5 • May 2019 Intellectual Property & Technology Law Journal 7 consider adopting, cities must tackle head-first the challenges of simplifying small cell deployment pro- cesses, while continuing traditional oversight roles and assuring that they receive reasonable compensa- tion from carriers and infrastructure providers.

(ii) Excessive Small Cell Fees and Rentals Envisioning small cells as new and windfall rev- enue sources, cities often seek to charge excessive application fees and rental/license fees that are comparable to cell tower and other macrocell site application fees and rental/license fees. These poli- cies are flawed because they ignore the high number of small cell deployments needed for strong and/or optimal 5G delivery. Although one small cell installment is substan- tially less expensive to install than one macrocell installation, the installation density 5G requires makes small cell deployments costly in the aggre- gate. For context, one geographic polygon of small cells could include anywhere from ten to 100 or more small cells within its body. Carriers and infrastructure providers incur numerous up-front costs for each deployed small cell, including, historically, fiber installations and associated fees, equipment costs, site acquisition costs, environmental and historic property review costs, and legal costs. Once a carrier or infrastruc- ture provider has incurred these up-front costs, it must further incur application, permitting, and rental/license fee expenses—not to mention post- installation and on-going maintenance, modifi- cation, and upgrade costs. Accordingly, excessive application and permitting fees and rentals/license fees discourage small cell deployments generally and, despite their need, can make them financially unfeasible in some markets.

(iii) Right-of-Way Access and Attachment Rights Carriers and infrastructure providers need access to the public rights-of-way for optimal 5G small cell deployments. Right-of-way access is crucial because of:

• Readily available or easily installable fiber optic cables and power sources in the rights-of-way; and • Existing or easily installable utility poles, street light poles, traffic signals, and other right-of-way structures, whether municipally or privately owned, to which carriers can attach small cells.

Despite rights-of-way being crucial for deploy- ment success, carriers and infrastructure provid- ers face multi-prong challenges to right-of-way deployments, including:

• Widely varying municipal ordinances; • Laboriously slow and inconsistent municipal permit processing; • Prohibitive, unreasonable, and widely vary- ing municipal fee structures among different jurisdictions; • Burdensome, costly, and inconsistent municipal information collection and assessment require- ments, which are often unrelated to right-of-way access; and • Remediation and maintenance responsibili- ties that carriers and infrastructure providers argue may be appropriate for macrocell sites but impose unreasonable burdens in the small cell deployment context.

Acquiring right-of-way access rights is only half of a carrier’s or infrastructure provider’s deployment battle. They must also obtain attachment rights— that is, rights to attach small cells to existing or to-be-constructed poles or other structures within the rights-of-way. Carriers and infrastructure pro- viders have three primary deployment/attachment options:

• Install their own poles and structures in the rights-of-way and attach small cells to them; • Attach small cells to city owned poles and struc- tures existing or to-be-constructed in the rights- of-way; or • Contract with a public utility to attach to the utility’s poles and structures. 20 Each of the preceding options carries differ- ent costs and risks, but no one of the options is a deployment panacea, so carriers and infrastructure 8 Intellectual Property & Technology Law Journal Volume 31 • Number 5 • May 2019 providers use a combination or all three options to maximize small cell deployments.

5G Deployment—The Federal Push Primary Federal Communications Laws Three primary federal laws impact small cell deployments:

• The Communications Act of 1934 21 (Communications Act); • The Telecommunications Act of 1996 (Telecommunications Act); 22 and • A provision of the Middle-Class Tax Relief and Job Creation Act of 2012 (Spectrum Act). 23 A detailed review of the preceding acts is beyond this article’s scope, but, for helpful context, this sec- tion briefly summarizes pertinent highlights of the acts relevant to small cell deployments. The Communications Act combined federal reg- ulation of telephone, telegraph, and radio commun- ications and created the Federal Communications Commission (FCC) to oversee interstate and for- eign communications. The Telecommunications Act, which amended and effectively overhauled the Communications Act, was the first major legislation addressing mobile broadband. In general, the Telecommunications Act prohibits state and local governments from prohib- iting any entity’s ability to provide any interstate or intrastate telecommunications service. Specifically, the Telecommunications Act • Preempts state and local laws that prohibit, or have the effect of prohibiting, the provision of personal wireless service; • Bars local laws from discriminating among pro- viders of functionally equivalent services; • Requires that local governments act on any authorization to place, construct, or modify per- sonal wireless service facilities within a reasona- ble time period; • If local governments deny siting applica- tions for small cells, requires them to deny the applications in writing and support their denials with substantial evidence from a written record; and • Preserves for state and local governments laws that (i) involve management of local rights-of- way and (ii) require telecommunications provid- ers to pay compensation for local rights-of-way, if those laws are non-discriminatory, publicly dis- closed, and compensation is fair and reasonable and competitively neutral.

Finally, the Spectrum Act preempts local law and limits local control over collocated wireless facili- ties to ensure their swift deployment and modifica- tion. Specifically, the Spectrum Act provides that a municipality “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.” 24 Peripheral Non-Communications Based Federal Laws Two non-communications based federal laws profoundly impact small cell deployments. The National Environmental Policy Act 25 (NEPA) pro- motes environmental enhancement and established the President’s Council on Environmental Quality.

The National Historic Preservation Act 26 (NHPA) preserves historical and archaeological sites in the United States, and it established the National Register of Historic Places, the list of National Historic Landmarks, and the State Historic Preservation Offices. Both NEPA and NHPA are responsible for sub- stantial portions of small cell deployment costs. For example:

• Sprint has reported that its costs for NHPA Tribal reviews of small cell deployments during the last two years exceeded $23 million; • Verizon Wireless estimated that NEPA and NHPA reviews were 26 percent of its total 2017 small cell deployment costs; and • AT&T predicted that it would spend approxi- mately $45 million during 2018 on NEPA and NHPA compliance. 27 Volume 31 • Number 5 • May 2019 Intellectual Property & Technology Law Journal 9 Carriers and infrastructure providers argue that (i) they must divert deployment resources to cover these costs, (ii) small cells are highly unlikely to have environmental impacts or affect historic properties, and (iii) eliminating unneces- sary reviews will result in significant time and cost savings—ultimately leading to jobs creation and propelling small cells densification and 5G con- sumer delivery.

The FCC’s Goal for american Global 5G Leadership The FCC has confidently predicted that 5G “can unleash a new wave of entrepreneurship, innova- tion, and economic opportunity for communities across the country.” 28 Unsurprisingly, therefore, the FCC wants America to maintain global leadership as mobile broadband technology moves from 4G to 5G and took three major actions to effectuate that goal.

The FCC Exempted Small Cells from Review Requirements In March 2018, the FCC adopted a Second Report and Order, 29 in which the FCC excluded small cells deployments by non-federal enti- ties from NHPA historic preservation review and NEPA environmental review under certain cir- cumstances. 30 In concluding that such deploy- ments are neither “undertakings” under NHPA nor “major Federal actions” under NEPA, the FCC determined that conducting such reviews for small cells would result in costs far exceeding benefits and that the cost and time burdens would grow exponentially as carriers and infrastructure provid- ers deploy ever-increasing small cell quantities. The FCC predicted that its determination and action will promote U.S. 5G leadership, cut deployment costs by 80 percent, trim months off deployment timelines, and incentivize thousands of new small cell deployments. 31 The FCC FAST Plan The FCC adopted the Facilitate America’s Superiority in 5G Technology Plan 32 (FAST Plan).

The FAST Plan’s comprehensive strategy has three key components:

• Pushing more low, mid, and high-band spec- trum 33 to the market; • Updating infrastructure policy and encourag- ing private sector investment in 5G networks by speeding up federal, state, and local review of small cells; • Modernizing outdated regulations to encourage 5G backhaul and digital opportunity for all U.S.

citizens. 34 (i) The FCC is Pushing Spectrum to Market Under the FAST Plan, the FCC has begun aggressively making more spectrum available to the commercial marketplace. For example, the FCC:

• Has conducted an incentive auction, in which it sold spectrum that TV broadcasters once used to wireless companies to expand consumer band- width and coverage; • Launched America’s first two 5G spectrum auc- tions in November 2018, and it announced plans to auction three more bands in 2019; • Is exploring how to repurpose mid-band spec- trum for new wireless applications from rural broadband coverage to Wi-Fi’s next generation; and • Is working with other federal agencies to free up spectrum the federal government currently holds. 35 (ii) The FCC is Promoting Updated Infrastructure The FAST Plan recognizes that a substantial physical infrastructure is necessary for optimal 5G delivery and performance. FCC Chairman Pai has estimated that the United States will need 800,000 new small cell sites by 2025—barely 200,000 exist today. 36 Accordingly, the FCC is encouraging pri- vate sector investment in 5G networks by:

• Adopting new rules reducing federal regulatory impediments to small cell infrastructure deploy- ments that 5G needs and helping to expand 5G’s reach for faster, more reliable wireless service; and • Reforming rules designed decades ago for mac- rocell sites to accommodate small cells, which ban “short-sighted municipal roadblocks that 10 Intellectual Property & Technology Law Journal Volume 31 • Number 5 • May 2019 have the effect of prohibiting deployment of 5G” and gives states and localities reasonable deadlines to approve or disapprove small cell applications. 37 (iii) The FCC is Modernizing Regulations Under the FAST Plan, the FCC is moderniz- ing outdated regulations to meet 5G infrastructure requirements and promote 5G backhaul 38 and dig- ital opportunities using a five-step process:

1. “[E]ncourag[ing] investment and innovation while protecting Internet openness and free- dom” through its adoption of the Restoring Internet Freedom Order, 39 which sets “a con- sistent national policy for Internet providers;” 2. Updating its rules governing the attachment of new network equipment to utility poles in order to reduce cost and speed processes; 40 3. Revising its rules so companies may more easily invest in next-generation networks and services; 4. Incentivizing investment in modern fiber net- works by updating rules for high-speed, dedi- cated services by lifting rate regulation where appropriate; and 5. Proposing to prevent taxpayer dollars from being used to purchase equipment or services from companies posing national security threats to the integrity of American communications networks or the communications supply chain.

The FCC’s Declaratory Ruling and Third Report and Order (i) Background During September 2018, the FCC adopted its Declaratory Ruling and Third Report and Order, WT Docket No 17-79 and WC Docket. No 17-84 41 (the Ruling and Order). The Order is the federal gov- ernment’s strategic focal point to promote 5G infra- structure’s timely buildout across the United States by “eliminating regulatory impediments that unnec- essarily add delays and costs to bringing advanced wireless service to the public.” 42 In practical speak, the Ruling and Order confirms the FCC’s positional alignment with the wireless industry that 5G deploy- ment will require thousands of commercial and residential installed small cells, and that state and local ordinances and regulations often impede that goal. 43 (ii) Ruling and Order Summary The Declaratory Ruling focuses primarily on local fees carriers and infrastructure providers must pay for the authorizations necessary to deploy small cells. In summary, the Declaratory Ruling:

• Explains when a state or local regulation of wireless infrastructure deployment constitutes an effective prohibition of service prohibited by Sections 253 or 332(c)(7) of the Communications Act; 44 • Concludes that Sections 253 and 332(c)(7) of the Communications Act 45 limit state and local governments to charging fees that are no greater than a reasonable approximation of objectively reasonable costs for processing applications and for managing deployments in the rights-of-way; • Removes uncertainty by identifying specific fee levels for small cell deployments that presumably comply with the “objectively reasonable” stand- ard; and • Provides guidance regarding when certain state and local non-fee requirements allowed gener- ally under the Communications Act—such as aesthetic and undergrounding requirements— may constitute an effective prohibition of service.

The Order portion of the Ruling and Order focuses primarily on the timeframes within which state and local governments must act upon carriers’ and infrastructure providers’ small cell deployment applications (commonly referred to in the wireless industry as “shot clocks”). In summary, the Ruling and Order:

• Establishes two new shot clocks for small cells— 60 days for collocation on preexisting structures and 90 days for new builds; • Confirms the existing 90 and 150 day shot clocks for wireless facility deployments that do not qualify as small cells that were established in 2009; Volume 31 • Number 5 • May 2019 Intellectual Property & Technology Law Journal 11 • Concludes that all state and local government authorizations necessary for the deployment of personal wireless service infrastructure are sub- ject to those shot clocks; and • Adopts a new remedy for localities that violate applicable shot clocks by finding that failures to act within the new small cell shot clocks consti- tute presumptive prohibitions on the provision of services.

(iii) Cost-Based Fees Established for Deployers to Access Public Rights-of-Way The Ruling and Order establishes an “objec- tively reasonable” standard governing fees that state and local governments can charge carriers and infrastructure providers to access public rights-of- way and attach to government owned properties in the rights-of-way, including light poles, traffic lights, utility poles, and other similar properties. 46 Under the Ruling and Order, access and attach- ment fees will violate the Communications Act, unless: “(1) the fees are a reasonable approximation of the state or local government’s costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated competitors in simi- lar situations.” 47 The Ruling and Order establishes a presump- tively lawful fee schedule for small cell applications.

Specifically, the presumptively lawful fees are the following: “(a) $500 for non-recurring fees, includ- ing a single up-front application that includes up to five [s]mall cells, with an additional $100 for each [s] mall cell beyond five, or $1,000 for non-recurring fees for a new pole (i.e., not a colocation) intended to support one or more [s]mall cells; and (b) $270 per [s]mall cell per year for all recurring fees, includ- ing any possible [right-of-way] access fee or fee for attachment to municipally-owned structures in the [right-of-way].” 48 Although the Ruling and Order expressly excludes access or attachments to govern- ment owned properties outside the rights-of-way, it requires that application or review fees for small cells outside the rights-of-way be cost-based. 49 (iv) The Ruling and Order Restricts State and Local Regulations for Small Cell Applications The Order acknowledges that state and local land-use or zoning requirements could restrict small cell deployments if the requirements effec- tively prohibit deployments. 50 The FCC clarified that a state or local legal requirement constitutes an effective prohibition if it “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.” 51 To assist state and local regulators, the Ruling and Order provides the following guidance regard- ing local zoning considerations that small cell appli- cations usually address:

(a) Local Aesthetic Requirements Local aesthetic requirements will be permissible if they are:

• Reasonable; • No more burdensome than those applied to other types of infrastructure deployments; and • Objective and published in advance. 52 Aesthetic requirements that are “technically fea- sible and reasonably directed to avoiding or rem- edying the intangible public harm of unsightly or out-of-character deployments” are permissible, but, if the aesthetic requirements are more burden- some than those applied to “similar infrastructure deployments,” they are impermissible because the “discriminatory application evidences the require- ments are not, in fact, reasonable and directed at remedying the impact of the wireless infrastructure deployment.” 53 To establish that aesthetic requirements are “rea- sonable and reasonably directed to avoiding” aes- thetic harms, the Ruling and Order clarified that “aesthetic requirements must be objective—i.e., they must incorporate clearly-defined and ascer- tainable standards, applied in a principled manner— and must be published in advance.” 54 (b) Local Minimum Spacing Requirements Local spacing requirements (i.e., mandates that small cells be installed a specific number of feet or other minimum distance away from other facilities, ostensibly to avoid excessive overhead clutter visi- ble from public areas) for small cells will be evalu- ated under the same standards as local aesthetic requirements. 12 Intellectual Property & Technology Law Journal Volume 31 • Number 5 • May 2019 The Ruling and Order explains that some spacing requirements “may violate Section 253(a) [of the Communications Act],” such as a city promulgating new minimum spacing requirements that, in effect, prevent a deployer from replacing its preexisting facilities or collo- cating new equipment on a structure already in use, while “others may be reasonable aesthetic requirements.” 55 (c) Local Undergrounding Requirements The Ruling and Order acknowledges that local undergrounding requirements (i.e., require- ments that equipment be installed underground) may be permissible under state law generally but, like local aesthetic requirements, must specifically comply with Section 253 of the Communications Act. 56 The Ruling and Order noted two underground- ing requirement examples that constitute effective prohibitions under Section 253:

• A requirement that “all wireless facilities be deployed underground would amount to an effective prohibition given the propagation char- acteristics of wireless signals.” 57 • A “requirement that materially inhibits wire- less service, even if it does not go so far as requiring that all wireless facilities be deployed underground.” 58 (d) Local In-Kind Service Requirements The Ruling and Order prohibits local, non- cost-based, in-kind requirements that do not meaningfully advance any recognized public inter- est objective—that is, an explicit or implicit quid pro quo in which a municipality makes clear that it will approve proposed deployments only upon condition that the provider supply an in-kind ser- vice or benefit to the locality, such as installing a communications network dedicated to the local- ity’s exclusive use.” 59 Per the Ruling and Order, “[s]uch requirements impose costs, but rarely, if ever, yield benefits directly related to the deployment. Additionally, where such restrictions are not cost-based, they inherently have ‘the effect of prohibiting’ service, and thus are pre- empted by Section 253(a) of the Communications Act.” 60 (e) Shot Clocks Established to Speed Local Small Cell Application Approvals The Ruling and Order establishes “shot clocks” tailored to speed state and local approvals of small cell applications. 61 For collocations on preexist- ing structures, 62 the Ruling and Order establishes a 60-day shot clock; and, for new sites, the Ruling and Order establishes a 90-day shot clock. 63 The shot clocks’ goals are to balance state and local authority over small cell application reviews with Section 332(c)(7)(B)(ii)’s requirement to exercise that authority “within a reasonable period of time” factoring the request’s nature and scope. 64 (f) Shot Clocks Apply to Batch Filings The Ruling and Order establishes that the shot clocks apply to batch filings for small cell clusters within the bodies of geographic polygons (i.e., multiple separate applications filed at the same time, each for one or more sites or a single application covering multiple sites). 65 When carriers and infrastructure providers file applications to deploy small cell facilities in batches, “the shot clock that applies to the batch is the same one that would apply had the applicant submit- ted individual applications.” 66 When deployers file a single batch application that includes “both col- located and new construction of small cells, the longer 90-day shot clock will apply, to ensure that the siting authority has adequate time to review the new construction sites.” 67 In “extraordinary cases” in which the sit- ing authority needs “flexibility to account for exceptional circumstances,” a local authority “can rebut the presumption of reasonableness of the shot clock period where a batch application causes legitimate overload on the siting authority’s resources.” 68 (g) Shot Clock Violations The Ruling and Order provides that state or local authority inaction at the applicable shot clock’s expiration will constitute a “fail- ure to act” under Section 332(c)(7)(B)(v) of the Communications Act, and the affected deployer may seek court relief. 69 Additionally, a “failure to act” will consti- tute a “presumptive prohibition” of the pro- vision of personal wireless services, which Volume 31 • Number 5 • May 2019 Intellectual Property & Technology Law Journal 13 will violate Section 332(c)(7)(B)(i)(II) of the Communications Act. 70 If a “failure to act” applies, the Order “expects the state or local government to issue all necessary permits without further delay.” 71 In cases where the local authority does not issue permits, the Ruling and Order does not deem the application granted but, instead, provides that “the applicant would have a straightforward case for obtaining expedited relief in court.” 72 If a failure to act case goes to court, the Order acknowledges the local authority “will have an opportunity to rebut the presumption of effective prohibition by demonstrating that the failure to act was reasonable under the circumstances and, there- fore, did not materially limit or inhibit the applicant from introducing new services or improving exist- ing services.” 73 (h) Shot Clock Commencement The Ruling and Order establishes when the shot clocks commence. “[A] shot clock begins to run when an application is first submitted, not when the application is deemed complete.” 74 For small cell applications, the locality has 10 days from the application’s submission to determine whether the application is incomplete. 75 Once an applicant submits any supplemental information the locality may request, the shot clock resets, which effectively gives the locality an addi- tional 60 days to review an application. 76 For subse- quent incompleteness determinations, “the shot clock would toll if the siting authority provides written notice within 10 days that the supplemental submis- sion did not provide the information identified in the original notice delineating missing information.” 77 (i) Shot Clocks to be Applied Broadly To keep small cell deployment on track by ensuring that the entire approval process neces- sary for deployment is completed within the shot clock time periods, the Ruling and Order clari- fies that the shot clocks will apply to “all autho- rizations a locality may require, and to all aspects of and steps in the siting process, including license or franchise agreements to access [rights-of-way], building permits, public notices and meetings, lease negotiations, electric permits, road closure permits, aesthetic approvals, and other authorizations needed for deployment.” 78 Judicial and Legislative Challenges to the FCC Order More than 20 cities and counties, including Los Angeles, Las Vegas, and Seattle, sued the FCC to overturn the Ruling and Order and to stay its implementation pending judicial review. The petitioners contended that aspects of the Ruling and Order conflict with various provisions of the Communications Act, are arbitrary and capricious under the Administrative Procedure Act, and vio- late local governments’ Fifth Amendment and Tenth Amendment rights. After the petitions were consolidated in the U.S.

Court of Appeals for the Tenth Circuit, numerous petitioners asked the Tenth Circuit to transfer the cases to the U.S. Court of Appeals for the Ninth Circuit, which they view as a more favorable venue based upon at least one of its prior interpretations of the Telecommunications Acts. In January 2019, the Tenth Circuit denied the petitioners’ requests to stay the Ruling and Order pending judicial review, ruling that the petitioners did not demonstrate that they would suffer irrepa- rable harm without the stay, which meant that most of the Ruling and Order became effective January 14, 2019, including the shot clocks; however, the Tenth Circuit granted the petitioners’ requests to transfer the Order’s appeal to the Ninth Circuit. On January 14, 2018, Congresswoman Anna Eshoo of California introduced a bill (H.R. 530), entitled the Accelerating Wireless Broadband Development by Empowering Local Communities Act of 2019, which is legislation meant to disman- tle the Ruling and Order. “Having served in local government for a decade on the San Mateo County Board of Supervisors, I understand and respect the important role that state and local governments play in protecting the welfare of their residents,” said Rep.

Eshoo. “5G is essential for our country’s communica- tions network and economy, but it must be deployed responsibly and equitably. The FCC let industry write these regulations without sufficient input from local leaders. This has led to regulations that restrict cities from requiring carriers to meet the needs of communities in which they want to operate.” 79 Conclusion 5G technology is universally predicted to be revolutionary. Less clear are the levels of consist- ency, reasonableness, and swiftness that state and 14 Intellectual Property & Technology Law Journal Volume 31 • Number 5 • May 2019 local governments can add to the 5G infrastructure deployment process in order for their citizens to be able to experience optimized 5G service. What is clear, however, is that the federal government appears willing and able to step in and facilitate 5G infrastructure deployment.

Notes 1. The “G” stands for “generation.” 2. “SMS” stands for “short message service.” SMS is a text messaging service component of most mobile device systems, which uses standardized communication pro- tocols to enable mobile devices to exchange short text messages. SMS text messaging is popular among direct marketers.

3. Multi-media applications use a combination of multiple media sources, including text, image, audio, animation, and video. Examples include interactive television, com- puter games, and smart phone applications.

4. 4G LTE means “fourth-generation long term evolution.” 5. Wireless infrastructure providers are businesses that develop, build, own, and operate macrocells, small cells, and distributed antenna systems and other wireless infrastructure, including wireless carriers and traditional tower portfolio companies like Crown Castle.

6. Cell towers are large, elevated, land-based, vertical structures, which have historically formed the basis of wireless networks, on and around which carriers install high-powered antenna arrays and supporting transmis- sion equipment. Cell towers are macrocell sites, but other installations on building rooftops and watertanks, among other structures, are also macrocell sites.

7. Macrocell sites are cells in mobile broadband networks served by high powered antenna arrays and related transmission equipment that provide coverage to a large geographic area.

8. “Collocating” generally refers to the practice of mul- tiple carriers installing their antennas and supporting transmission equipment on one cell tower or other structure.

9. For additional discussion of cell site types, see William Lawrence’s publication entitled The Cell Tower Ground Lease: An Atypical Commercial Lease–What Attorneys Should Know, The Alabama Lawyer, Vol. 79, No.2, March 2018.

10. The common statutory nomenclature is “small wireless facility” and not “small cell.” For simplicity and refer- ence ease, this article uses the term “small cell.” 11. “A utility shall provide . . . a telecommunications car- rier with nondiscriminatory access to any pole, duct, conduit, or right-of-way owned or controlled by it.” 47 U.S.C. § 224(f)(1). “A utility providing electric service may deny a . . . telecommunications carrier access to its poles, ducts, conduits, or rights-of-way, on a non- discriminatory basis where there is insufficient capacity and for reasons of safety, reliability and generally appli- cable engineering purposes.” 47 U.S.C. § 224(f)(2). See also 47 C.F.R. § 1.1403(a).

12. See infra.

13. Remarks of FCC Chairman Ajit Pai – White House 5G Summit – Washington, DC, September 28, 2018, https://docs.fcc.gov/public/attachments/DOC-354323A1.

pdf .

14. Id.

15. How America’s 4G Leadership Propelled the U.S. Economy, https://api.ctia.org/wp-content/uploads/2018/04/Recon- Analytics_How-Americas-4G-Leadership-Propelled-US- Economy_2018.pdf.

16. https://newsroom.accenture.com/news/new-research-from- accenture-strategy-highlights-economic-and-societal-impact-of- investing-in-5g-infrastructure.htm.

17. Senate Bill No. 1004, Chapter 284.001.(7), https://legis- can.com/TX/bill/SB1004/2017.

18. https://www.smartworkspartners.com/state-legislation.

19. See, e.g. City of McAllen v. State of Texas, Tex. Dist. Ct., D-1-GN-17-004766, in which more than 20 Texas cit- ies have challenged Texas’ statewide law on the basis that the cities should have greater says about small cell deployments within their jurisdictions.

20. To facilitate wireless deployments, the FCC has clarified that pole attachment laws cover wireless attachments.

Federal Communications Commission, “Report and Order and Order on Reconsideration,” April 7, 2011, https://apps.fcc.gov/edocs_public/attachmatch/FCC-11- 50A1.pdf.

21. 47 U.S.C. § 151 et seq.

22. Pub. L. No. 104-104, 110 Stat. 56 (codified as enacted and amended in scattered sections of 15 U.S.C., 18 U.S.C. and 47 U.S.C.).

23. 47 U.S.C. § 1455; Pub. L. 112-96, 126 Stat. 156.

24. 47 U.S.C. § 1455(a)(1).

25. 42 U.S.C. § 4321 et seq.

26. Pub. L. 89-665, 80 Stat. 915.

27. Cellular Telecommunications Industry Association (CTIA) ex parte presentation to the FCC, Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, WT Docket No. 17-79; Streamlining Deployment of Small Cell Infrastructure, WT Docket No. 16-421. https://ecfsapi.fcc.gov/ file/10226219719241/180226%20CTIA%20Ex%20 Parte%20on%20Costs%20Associated%20with%20 NEPA%20and%20NHPA%20Reviews.pdf.

CTIA is a Washington, D.C.-based trade association representing the wireless communications industry in the United States. Volume 31 • Number 5 • May 2019 Intellectual Property & Technology Law Journal 15 28. FCC’s Declaratory Ruling and Third Report and Order (WT Docket No. 17–79 and WC Docket No. 17–84) adopted September 26, 2018, Section I.1.

29. FCC-CIRC1803-01 – In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment – WT Docket No. 17-79.

30. The specific conditions for exclusion from NHPA and NEPA review for small cells are as follows: (i) the facili- ties are mounted on structures 50 feet or less in height, including their antennas, or the facilities are mounted on structures no more than 10 percent taller than other adjacent structures, or the facilities do not extend beyond the height of existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater; (ii) each antenna associated with the deployment, excluding the associ- ated equipment, is no more than three cubic feet in vol- ume; (iii) all other wireless equipment associated with the structure, including the wireless equipment associ- ated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume; (iv) the facilities do not require certain specified antenna structure registrations; (v) the facilities are not located on Tribal lands; and (vi) the facilities do not result in human exposure to specified levels of radio frequency radiation.

31. FCC-CIRC1803-01 – In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment – WT Docket No. 17-79.

32. The FCC’s 5G FAST Plan was issued, adopted, and released on September 28, 2018. A copy of the FAST Plan is available at https://docs.fcc.gov/public/attachments/ DOC-354326A1.pdf.

33. Spectrum or electromagnetic spectrum is the range of wavelengths over which electromagnetic radiation extend.

34. https://www.fcc.gov/5G.

35. Remarks of FCC Chairman Ajit Pai – White House 5G Summit – Washington, DC, September 28, 2018, https://docs.fcc.gov/public/attachments/DOC-354323A1.

pdf.

36. Id.

37. Id.

38. Cellular networks refer to “backhaul” generally as the link between a base station network, which consists mostly of dedicated coaxial cables, fiber, copper, micro- wave, and occasionally, satellite links.

39. A copy of the FCC’s Restoring Internet Freedom Order is available at https://docs.fcc.gov/public/attach- ments/DOC-351481A1.pdf .

40. As FCC Chairman Pai has stressed, deploying a small cell on a utility pole takes approximately one or two hours; however, it routinely takes more than two years to obtain all necessary approvals to install that small cell.

https://docs.fcc.gov/public/attachments/DOC-354323A1.

pdf.

41. Action by the Commission September 26, 2018 by Declaratory Ruling and Report and Order (FCC 18-133) – WT Docket No. 17-79 and WC Docket No. 17-84. Chairman Pai, Commissioners O’Rielly and Carr approving. Commissioner Rosenworcel approving in part and dissenting in part.

Chairman Pai, Commissioners O’Rielly, Carr, and Rosenworcel issuing separate statements.

42. FCC Fact Sheet – Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment. A copy of the Fact Sheet is available at https://docs.fcc.gov/public/attachments/DOC-353962A1.

pdf.

43. On January 14, 2019, Congresswoman Anna Eshoo (CA-18) introduced into Congress the “Accelerating Broadband Development by Empowering Local Communities Act of 2019,” which would preserve state and local government rights and overturn the FCC Order. According to Eshoo, “Having served in local government for a decade on the San Mateo County Board of Supervisors, I understand and respect the important role that state and local governments play in protecting the welfare of their residents. . . . 5G is essential for our country’s communications network and economy, but it must be deployed responsibly and equitably. The FCC let industry write these regulations without sufficient input from local leaders. This has led to regulations that restrict cities from requiring carriers to meet the needs of communities in which they want to operate.” https://eshoo.house.gov/news-stories/press- releases/eshoo-introduces-legislation-to-restore-local-control- in-deployment-of-5g/.

44. The Communications Act generally proscribes state and local regulations from prohibiting or having the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service and authorizes the FCC to preempt the enforcement of any proscribed regulation.

45. 47 U.S.C. § 332(c)(7) generally preserves local zoning authority over decisions regarding the placement, con- struction, and modification of “personal wireless service facilities,” which § 332(c)(7)(C)(ii) defines as “facilities for the provision of personal wireless services.” The term “personal wireless services” means “commercial mobile services, unlicensed wireless services, and com- mon carrier wireless exchange access services.” 47 U.S.C. § 332(c)(7)(C)(i).

46. Ruling and Order Section III.B – State and Local Fees.

47. Id. at Section III.B.50. 16 Intellectual Property & Technology Law Journal Volume 31 • Number 5 • May 2019 48. Id. at Section III.B.79.

49. Id. at Section III.B.50.

50. Id. at Section III.C.81.

51. Id. at Section III.C.82.

52. Id. at Section III.B.86.

53. Id. at Section III.C.87.

54. Id. at Section III.C.88.

55. Id. at Section III.C.91.

56. Id. at Section III.C.90.

57. Id.

58. Id.

59. Id. at Section III.C.91 at n.252.

60. Id.

61. Id. at Section IV.103.

62. For shot clock purposes, the Order clarifies that “attach- ment of facilities to existing structures constitutes collo- cation, regardless of whether the structure or the location had previously been zoned for wireless facilities.” 63. Id. at Section IV.A.105. 64.

Id. at Section IV.A.105.

65. Id. at Section III.B.113.

66. Id. at Section III.A.2.114.

67. Id.

68. Id.

69. Id. at Section III.B.116.

70. Id. at Section III.B.117.

71. Id. at Section III.B.118.

72. Id.

73. Id. at Section III.B.119.

74. Id. at Section IV.C.4.141.

75. Id. at Section IV.C.4.143.

76. Id.

77. Id.

78. Id. at Section IV.C.1.132.

79. https://eshoo.house.gov/news-stories/press-releases/eshoo- introduces-legislation-to-restore-local-control-in-deployment- of-5g/. Copyright ofIntellectual Property&Technology LawJournal isthe property ofAspen Publishers Inc.anditscontent maynotbecopied oremailed tomultiple sitesorposted toa listserv without thecopyright holder'sexpresswrittenpermission. However,usersmayprint, download, oremail articles forindividual use.