Marin County, Calif., Joins Coalition Opposing FCC 5G Rules

County leaders contend the Federal Communications Commission overstepped its authority in limiting local controls over where telecom companies can place small cell antennas.

by Richard Halstead, The Marin Independent Journal / November 2, 2018
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(TNS) — Marin County is joining with more than 20 cities and counties across the U.S. in a legal challenge to new federal policy on the rollout of the next-generation wireless network known as 5G.

The decision was announced by the Board of Supervisors after a closed-session meeting on Tuesday.

“We have heard considerable concern from members of the community about the Federal Communication Commission’s proposed rules around deployment of 5G and the industry-centric regulations the agency is propounding,” said Damon Connolly, president of the Board of Supervisors.

New rules approved by the FCC on Sept. 26 could effectively give telecom companies millions of dollars in financial breaks by limiting how much local jurisdictions can charge in access fees for 5G antennas.

The rules also set strict timelines for granting approvals for antennas, requiring cities and counties to act on applications for deployments on existing structures within 60 days. Applications for entirely new installations must be acted on within 90 days.

“We are focusing on the FCC exceeding its statutory authority and unlawfully encroaching on local authority in attempting to accelerate the ‘shot clocks’ and limit local fees,” said Marin County Counsel Brian Washington.

Several coalitions have formed, led by different law firms, to file the legal challenges. Marin’s action is being handled by Spiegel & McDiarmid, based in Washington, D.C. The town of Fairfax is part of a different coalition that includes the city and county of Los Angeles and the city of San Jose; that action is being handled by Best Best & Krieger, based in Walnut Creek.

“There are now six appeals pending on the legality of the FCC’s Sept. 26 small cell order,” said Gerard Lederer, a telecommunications lawyer at Best Best & Krieger. “The issues are the same and at some point we assume the court will consolidate the matters.”

The primary selling point of the 5G technology is speed; supporters say it will provide download speeds to mobile devices faster than what many Americans receive on their home Internet connections.

In a report issued before the new rules were adopted, FCC staff stated “5G can enable increased competition for a range of services — including broadband — support new health care and Internet of Things applications, speed the transition to life-saving connected car technologies, and create jobs.”

One of the factors stoking public concern is that wireless companies installing 5G antennas say the devices need to be clustered closer together, every several hundred feet, to broadcast short-range signals. The FCC staff report estimated that wireless providers will invest $275 billion over the next decade in next-generation wireless infrastructure deployments.

The new rules will limit, however, how much local jurisdictions can charge in access fees for the antenna installations. Under the FCC’s new policy, local jurisdictions will be allowed to charge no more than $270 per year per cell site in access fees.

In a September letter to the FCC, Connolly wrote, “We disagree with the FCC’s interpretation of ‘fair and reasonable compensation’ as meaning approximately $270 per small cell site. Many cities, towns and counties in California already have worked to negotiate fair deals with wireless providers.”

The Marin General Services Authority, a joint powers authority whose members include Marin County and all of the county’s municipalities, owns 15,000 to 16,000 street light poles in Marin, about 75 percent of the total number of poles in the county.

Michael Frank, the authority’s executive officer, said that about 18 months ago the authority negotiated contracts with Verizon Wireless and Mobilitie, a telecommunications infrastructure company working on behalf of Sprint, for access fees. Verizon paid a one-time fee of $20,000 and agreed to pay access fees of $1,000 per pole annually. Mobilitie paid a one-time fee of $15,000 and agreed to pay access fees of $1,200 per pole annually.

Before the companies can begin installing antennas, however, municipalities must issue approvals and so far none have, Frank said.

Jean Bonander, executive officer at the Marin Telecommunications Agency, said she is also concerned that the new rules will give wireless companies a competitive advantage over cable companies, which will be stuck paying much higher access fees.

For several weeks now, Marin residents concerned about the potential proliferation of antennas in their neighborhoods have been showing up at Board of Supervisors’ meetings imploring the supervisors to block the coming wave of installations.

Residents aren’t concerned about access fees. They’re worried about potential health risks from increased proximity to radio frequency emissions.

Wireless companies maintain that emissions at levels mandated by the FCC do not pose health concerns, but critics insist they have studies that show otherwise.

The Telecommunications Act of 1996 prevents local jurisdictions from enacting regulatory actions based directly or indirectly on the environmental effects of radio frequency emissions.

Mill Valley, San Anselmo, Ross and Fairfax have all recently adopted ordinances limiting the installation of new antennas in areas zoned residential.

©2018 The Marin Independent Journal (Novato, Calif.). Distributed by Tribune Content Agency, LLC.