Policymaking in the Public Right of Way: Coercive Federalism and Telecommunications Policy
The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.
By Patrick Mulhearn
February 15, 2019
The debate over the extent of local control dates to our country’s formation and was fundamental in establishing the balanced constitutional powers that define American governance. Indeed, preemption of local authority for a common good is at the heart of our federal system: local governments only exist insofar as the federal and state governments delegate specific responsibilities to them.
But local zoning and land-use authority is still broadly
recognized as reasonable and valuable. As discussed in last
month’s column, home rule
is acknowledged as vital to the preservation of public well-being and for the
expression of local needs in the policymaking process. Telecommunications
policy is an area where local authority and federal priority have now come into
conflict.
In developing these policies, state and federal regulators
have taken the explicit view that local governments impede the implementation
of their preferred strategies–essentially the development a contiguous,
nationwide network of wireless telecommunications facilities.
This federal posture is not borne of malice, but out of the
need for regulatory continuity. Whereas our telecommunications landscape was once
defined by siloed technologies (e.g. telegraph, telephone and cable) that had
different uses and infrastructure needs, our world today is defined by
convergence: the recombination of diverse technologies into a unified whole
that spans the spectra of wireless frequency. It enters our homes through
pulses of light.
The federal government implemented the Telecommunications
Act of 1996 in order to foster the development of modern telecommunications
infrastructure. But according to Frederic
Kessler, the Act was also implemented to, “Reduce state and local
barriers to market entry,” for those technologies. So while section
332 of the Act explicitly preserves local zoning authority, it
defines (and thus restricts) that authority to the placement, construction, and
modification of telecommunications facilities. Section
253 of the Act asserts that local governments may not prohibit any
entity from providing telecommunications services.
In this federal relationship, the national government
established local authority by clearly defining what it should and should not
be.
Time/Manner/Place,
Aesthetics and Shot Clocks
Federal regulation and caselaw have defined local government’s
regulatory environment to a few very specific features.
As mentioned above, section 332 of the Telecommunications
Act of 1996 restricts local authority to the placement, construction and
modification of telecommunications facilities. This means local governments
have some say in where cell towers can be built, the materials used and when
new equipment can be added.
Courts
have further maintained that jurisdictions have some latitude in
evaluating sites and equipment on aesthetic standards, and that decisions made
under zoning laws are discretionary.
But while regulatory review can be a very technical and
time-intensive discipline, FCC guidelines limit the amount of time local
agencies can spend reviewing project applications to a, “Reasonable
period of time,” which is codified as, “Shot clocks”.
5G
Recent developments in millimeter wave technologies have
made the possibility of 5G wireless networks more feasible, and the United
States government has deemed these networks vital for national strategic and
economic import.
The future 5G network will function via a series of
distributed antennae in proximity, generally on existing utility poles in the
public right-of-way. While the antennae
are small–generally 16-36 inches high–the impacts on a right-of-way can be
significant if those poles are already home to other infrastructure. And since
the antennae are proprietary, each provider will want its own space on the pole
at the risk of accreting visual blight.
Further clutter can be expected on the ground, as these
facilities all require support infrastructure nearby.
The recent FCC order on 5G
infrastructure asserts that local governments must expedite
applications for the siting of this infrastructure. The order further restricts
the ways in which local governments can assert local priorities and mitigate
citizens’ concerns. For example, the order restricts cost-recovery for
application processing to a soft cap rather than as a reflection of the actual
cost in staff time and other public resources. While local governments can set
their rates as they see fit, permit applicants can challenge these fees if
they’re outside the agreed-upon range.
This is cause for some concern as complicated applications
will necessarily be more expensive to process than the caps, and it’s likely
that the public will end up absorbing any deficits.
What This Means
FCC Commissioner Jessica Rosenworcel called this
policy, “An extraordinary federal overreach,” and expressed her
concerns about the federal government, “Running roughshod over state and local
authority.” Telecommunications policy sits at the friction point of our
constitutional dual sovereignty, and the tensions between local voices and the
implementation of federal strategy cannot be ignored.
Section 253 of the Telecommunications Act balanced local and
state interests against those of the federal government, but sacrificed local
autonomy in order to reduce regulatory burdens on private infrastructure
investment.
The 5G push has continued this policymaking process according to the needs of the telecommunications industry, and continues the process of moving these decisions away from local governments. Next month we’ll discuss some of the efforts to push back against this trend.
Author:Patrick Mulhearn, MPA is a public policy analyst for the Santa Cruz County, California, Board of Supervisors. He focuses primarily on policies relating to telecommunications and transportation infrastructure and may be reached at [email protected].
(No Ratings Yet)
Loading...
Policymaking in the Public Right of Way: Coercive Federalism and Telecommunications Policy
The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.
By Patrick Mulhearn
February 15, 2019
The debate over the extent of local control dates to our country’s formation and was fundamental in establishing the balanced constitutional powers that define American governance. Indeed, preemption of local authority for a common good is at the heart of our federal system: local governments only exist insofar as the federal and state governments delegate specific responsibilities to them.
But local zoning and land-use authority is still broadly recognized as reasonable and valuable. As discussed in last month’s column, home rule is acknowledged as vital to the preservation of public well-being and for the expression of local needs in the policymaking process. Telecommunications policy is an area where local authority and federal priority have now come into conflict.
In developing these policies, state and federal regulators have taken the explicit view that local governments impede the implementation of their preferred strategies–essentially the development a contiguous, nationwide network of wireless telecommunications facilities.
This federal posture is not borne of malice, but out of the need for regulatory continuity. Whereas our telecommunications landscape was once defined by siloed technologies (e.g. telegraph, telephone and cable) that had different uses and infrastructure needs, our world today is defined by convergence: the recombination of diverse technologies into a unified whole that spans the spectra of wireless frequency. It enters our homes through pulses of light.
The federal government implemented the Telecommunications Act of 1996 in order to foster the development of modern telecommunications infrastructure. But according to Frederic Kessler, the Act was also implemented to, “Reduce state and local barriers to market entry,” for those technologies. So while section 332 of the Act explicitly preserves local zoning authority, it defines (and thus restricts) that authority to the placement, construction, and modification of telecommunications facilities. Section 253 of the Act asserts that local governments may not prohibit any entity from providing telecommunications services.
In this federal relationship, the national government established local authority by clearly defining what it should and should not be.
Time/Manner/Place, Aesthetics and Shot Clocks
Federal regulation and caselaw have defined local government’s regulatory environment to a few very specific features.
As mentioned above, section 332 of the Telecommunications Act of 1996 restricts local authority to the placement, construction and modification of telecommunications facilities. This means local governments have some say in where cell towers can be built, the materials used and when new equipment can be added.
Courts have further maintained that jurisdictions have some latitude in evaluating sites and equipment on aesthetic standards, and that decisions made under zoning laws are discretionary.
But while regulatory review can be a very technical and time-intensive discipline, FCC guidelines limit the amount of time local agencies can spend reviewing project applications to a, “Reasonable period of time,” which is codified as, “Shot clocks”.
5G
Recent developments in millimeter wave technologies have made the possibility of 5G wireless networks more feasible, and the United States government has deemed these networks vital for national strategic and economic import.
The future 5G network will function via a series of distributed antennae in proximity, generally on existing utility poles in the public right-of-way. While the antennae are small–generally 16-36 inches high–the impacts on a right-of-way can be significant if those poles are already home to other infrastructure. And since the antennae are proprietary, each provider will want its own space on the pole at the risk of accreting visual blight.
Further clutter can be expected on the ground, as these facilities all require support infrastructure nearby.
The recent FCC order on 5G infrastructure asserts that local governments must expedite applications for the siting of this infrastructure. The order further restricts the ways in which local governments can assert local priorities and mitigate citizens’ concerns. For example, the order restricts cost-recovery for application processing to a soft cap rather than as a reflection of the actual cost in staff time and other public resources. While local governments can set their rates as they see fit, permit applicants can challenge these fees if they’re outside the agreed-upon range.
This is cause for some concern as complicated applications will necessarily be more expensive to process than the caps, and it’s likely that the public will end up absorbing any deficits.
What This Means
FCC Commissioner Jessica Rosenworcel called this policy, “An extraordinary federal overreach,” and expressed her concerns about the federal government, “Running roughshod over state and local authority.” Telecommunications policy sits at the friction point of our constitutional dual sovereignty, and the tensions between local voices and the implementation of federal strategy cannot be ignored.
Section 253 of the Telecommunications Act balanced local and state interests against those of the federal government, but sacrificed local autonomy in order to reduce regulatory burdens on private infrastructure investment.
The 5G push has continued this policymaking process according to the needs of the telecommunications industry, and continues the process of moving these decisions away from local governments. Next month we’ll discuss some of the efforts to push back against this trend.
Author:Patrick Mulhearn, MPA is a public policy analyst for the Santa Cruz County, California, Board of Supervisors. He focuses primarily on policies relating to telecommunications and transportation infrastructure and may be reached at [email protected].
Follow Us!