Widgetized Section

Go to Admin » Appearance » Widgets » and move Gabfire Widget: Social into that MastheadOverlay zone

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”.


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]

1 Star2 Stars3 Stars4 Stars5 Stars (No Ratings Yet)

Leave a Reply

Your email address will not be published. Required fields are marked *