The need for high-speed broadband connectivity has never been clearer than it is today. While the pandemic forces Americans to remain indoors, the Internet remains a lifeline to the outside world. Fortunately, broadband providers have invested billions of dollars to upgrade their networks, ensuring infrastructure remains resilient in the face of increased traffic while allowing innovative new services to develop. But to maximize these benefits and incentivize continued investment, policy can’t lag behind.

Section 6409 of the Spectrum Act requires local and state governments to approve eligible facilities’ requests for a modification of existing wireless facilities if the requests do not substantially change the physical dimensions of a facility. In implementing the statute, the FCC also adopted a 60-day shot clock for local government approval of these requests, though the Commission allowed regulators to deny an application if a modification would defeat the concealment elements of a structure.

Broadband providers rely on this process, as high fees or lengthy delays to install infrastructure can often make deployment unprofitable. In Kansas City, Missouri, for example, Google needed to obtain 37,000 permits for construction alone, which would have amounted to $2,000,000 if the city didn’t waive the fees. With the upgrade to 5G networks requiring the deployment of thousands of small wireless facilities, using Section 6409 to obtain regulatory approval bypasses many of these costs and delays across the nation, ensuring more Americans gain access to these improved services. Unfortunately, some localities have been stretching the language of the rules to either stall applications or flat out deny them, regardless of whether they violate Commission rules.

In June, the FCC will vote on a declaratory ruling that would take significant steps to clarify this process. Most significantly, the declaratory ruling would clarify that shot-clocks for eligible service requests begin running when a broadband provider takes the first procedural step in a locality’s application process. Even though Commission rules require that applications be approved in 60 days, some localities will extend this by shuffling applications around while they determine “completeness.” The Commission’s approach in the item would still allow localities the authority to define the process by which applications are submitted and approved, but requires the localities to abide by their own practices. This will ensure that applications are processed in a timely and efficient manner.

In addition, the declaratory ruling would also clarify the applicability of concealment elements—the design aspects, such as the appearance as a palm tree or cactus, that blend a facility into its surroundings. Many localities argue that a modification that makes a tower even slightly more visible will defeat concealment elements, derailing potential upgrades. However, the Commission rightly explains that simply making a tower slightly more visible does not substantially change a structure.

These are just a few steps the item would take, and it is critical to continue moving forward with regulatory reforms to promote the deployment of critical broadband infrastructure. There is still much more work to be done.

Many necessary infrastructure deployments will fall outside of the eligible facilities request process. However, state lawmakers have the authority to preempt a wide range of local regulations that impose barriers to deployment. Indeed, R Street releases an annual Broadband Scorecard that breaks down every state’s laws governing broadband deployment and identifies potential areas in which every state can improve. This ranges from establishing shot clocks and fee caps on applications for construction or access to right-of-ways, to establishing dig-once policies or banning moratoria on filings.

And at the federal level, the FCC has led the charge primarily in the context of small wireless facilities, a key component of 5G networks. In 2018, for example, the FCC approved an item that clarified existing rules and codified new ones that imposed many of the same cost-based fees, fee caps and shot clocks called for in the Broadband Scorecard. Congress can expand on these efforts by passing the Streamline Act, a bill that would codify fee caps and shot clocks on small cell application review.

Americans rely on access to high speed networks more than ever, but there are very real costs and risks associated with investment in the infrastructure that these networks are built on. These risks can’t be eliminated entirely, but we should strive to limit them to the extent possible. The FCC’s declaratory ruling is a great next step in promoting broadband deployment in the United States.

Image credit: jamesteohart

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