By Terence M. Durkin

As the demand for high-bandwidth mobile internet access continues to grow, markets and governments are confronted with the issue of how best to meet that demand.  5G is the fifth-generation of cellular wireless technology that brings with it greater speed to move data, lower latency to be more responsive, and the ability to connect a lot more devices at once for sensors and smart devices.  5G networks are expected to be at least 100 times faster than current 4G networks, and as more individuals look to their wireless devices to stream movies and shows, and the internet of things (IoT) devices continue to proliferate, users will increasingly rely on 5G’s increased capacity.

Similar to other cellular networks, 5G operates through a system of cell sites that divide their territory into sectors and send data through radio waves.  Such a network requires significant investment in infrastructure, and this is where the Federal Communications Commission comes in.  In September of this year, the FCC under Chairman Ajit Pai acted to promote 5G deployment in its wireless infrastructure declaratory ruling and third report and order.

The Commission voted 3-1 to limit local governments’ ability to regulate 5G deployment.  The ruling established caps on permitting fees of local governments, created shot clocks for local governments to review small cell deployment, and handicapped the ability of local governments to control rates.  It is estimated that this ruling would cut almost $2 billion in unnecessary fees and stimulate $2.4 billion in 5G investment.  Advocates of the ruling say that the move will encourage the rapid deployment of 5G across America, but critics argue that the ruling is a setback for rural communities and will encourage rent-seeking behavior from telecommunications companies.

Ultimately, the goal of the federal, state, and local governments should be to ease the regulatory burden of the siting processes for small wireless facilities, or small cells, in order to promote investment in 5G technology.  Effectively establishing the wireless infrastructure for 5G will require thousands of small cell antennas, and will help connect all Americans, urban and rural, to the next-generation of broadband.

Balancing the interests of state and local governments against the federal government is always a tricky task.  In this ruling, the FCC has attempted to strike a balance.  The ruling preserved much of the authority of state and local officials while also providing clarity to reduce barriers to the deployment of much needed wireless technology.  For example, the ruling preserves local aesthetic requirements so long as they are reasonable, nondiscriminatory, objective, and published in advance.  The Commission also provided guidance regarding the length of time it should take to evaluate a new small cell deployment.  Together, these steps help maintain local control while simultaneously providing more certainty to businesses hoping to deploy 5G networks.

The United States is currently in a global race to implement the next generation of broadband.  The productivity of our nation will be significantly affected by how different levels of government address this issue.  Local governments have a special interest in protecting and enriching their cities, and the federal government has a special interest in promoting new services while respecting the authorities of state and local governments.  Under Chairman Pai, the FCC through its ruling has attempted to reduce the cost of deployment while respecting the needs of the state.  Ideally, these steps will help expand the reach of a wireless network to more Americans and spur further investment.  Only time will tell whether such steps are effective.

Student Bio: Terence is a 3L at Suffolk University Law School. He is currently the Blog Editor on the Journal of High Technology Law, Vice-President of the Federalist Society, and President of the Christian Fellowship. Terence holds a B.A. in Economics from Wesleyan University.

Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.

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