Introduction and Summary

The Information Technology and Innovation Foundation appreciates the opportunity to comment on the Notice of Proposed Rulemaking regarding Eliminating Barriers to Wireless Deployments.^[1] Wireless infrastructure is an essential component of our connected economy, and the Commission should lead the way in enabling its deployment. While state and local governments have a role to play in the permitting process, they overstep that role when they extract unreasonable conditions or fees or when their slow processes grind deployment to a halt. These practices are bad for consumers in local communities and for the country as they reduce and delay the individual and networked benefits of wireless connectivity.

The Commission Should Preempt State and Local Rules that Impose Unreasonable Conditions on Wireless Deployment

The 2020 Declaratory Ruling correctly limited state and local siting-approval conditions.^[2] The Commission should now go further to clarify that any siting-approval conditions cannot be used to prevent modifications otherwise allowed under the Commission’s rules, such as § 1.6100(b)(7)(i)-(iv). The purpose of the rules is to provide predictable guardrails for states, localities, and deploying ISPs. Allowing more restrictive conditions not only erects greater burdens to broadband deployment to consumers, but it also creates regulatory uncertainty in which an ISP cannot know in advance what conditions it will face when it attempts to deliver connectivity. This uncertainty increases risks in an already capital-intensive enterprise and thus will result in slower deployment to fewer consumers than a more predictable system.

The Commission should also clarify that states and localities may not impose new conditions to renew a permit it granted for the same deployment without those conditions. Existing law already states that “a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”^[3] There can be no less substantial change than no change at all, so new conditions on existing deployment will be unlawful in almost every case.

The Commission should also give teeth to its shot clocks by creating a deemed-granted remedy against states and localities that do not comply with them. Unreasonable delays in a reasonable permitting process can obstruct connectivity expansion just as much as unreasonable permitting processes themselves. Therefore, the Commission should support consumer access by holding states and localities to a high standard for approving wireless deployments. Shot clocks are a reasonable method of incentivizing rapid compliance with Commission rules, but without strong remedies when regulators do not comply, they will be less effective than they could be. A deemed-granted remedy is well calibrated to allow state and local oversight of the permitting process while ensuring that deployment can continue in the face of bureaucratic stonewalling.

The Commission Should Require Any Fees Relating to Wireless Deployment to Match Actual Administrative Costs

The Commission should affirm and continue to apply the economic interpretation of its rules regarding permitting fees. Profit-seeking ISPs make decisions on the margin: They will serve every household for which the expected revenue exceeds the expected cost of providing service.^[4] All fees increase the cost of deployment, thus increasing the minimum revenue needed to cover those costs. Therefore, the marginal households, which would have been near the breakeven line at a lower deployment cost, will be on the wrong side of it and get less or slower deployment of wireless services.

To be sure, some fees are reasonable; insofar as a state or locality has a reasonable permitting process, it must cover the cost of administering it. But to charge fees above the actual administrative costs of a reasonable permitting system unnecessarily harms marginal consumers. Therefore, the Commission’s prior reasoning that such fees “materially and improperly inhibit deployment that could have occurred elsewhere” is correct.^[5]

Therefore, the Commission should make clear that reasonable costs are only those that reflect the actual administrative costs of a permitting system that complies with Commission rules and place the burden on localities to show that their fees are reasonable. This extension of the rule from the Small Cell Order should apply to one-time fees, consulting fees, recurring fees, and gross revenue fees, like those listed in paragraph 51 of the NPRM, likely violate the rule.^[6]

Furthermore, the practical effect of “prohibiting deployment” depends on the type of service being deployed. Thus, for wireless services (such as 5G) that, by their nature, require dense infrastructure, state and local processes or fees that disfavor densification prohibit deployment of those technologies. Network densification also promotes spectrum productivity by allowing the same frequencies to be reused in smaller cells, so the Commission’s overriding mandate to ensure productive spectrum use makes enabling densification even more important.

Conclusion

The Commission should keep its focus on how to enable consumers to benefit from wireless services and prevent state and local red tape from undermining those benefits. Diverting time and resources into state and local bureaucracy is bad for consumers and the Commission should make clear that it is also contrary to law.

Thank you for your consideration.

Endnotes