House committee investigates FCC over 5G infrastructure order

Kelly Hill, RCR Wireless News, Jan 28, 2019 House committee probes whether FCC representatives urged carriers to game the legal system in support of recent infrastructure order

The House Energy and Commerce committee has asked the Federal Communications Commission to produce communications records between FCC employees and network operators related to the commission’s recent order preempting local control and pricing of infrastructure access, alleging that FCC representatives may have acted improperly in support of an initiative that is likely to save operators billions in 5G deployment costs.

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“It has come to our attention that certain individuals at the FCC may have urged companies to challenge the order the commission adopted in order to game the judicial lottery procedure and intimated the agency would look unfavorably toward entities that were not helpful,” wrote committee Chairman Frank Pallone, Jr. (D-New Jersey) and Mike Doyle (D-Pennsylvania), chairman of the subcommittee on communications and technology, in a letter to FCC Chairman Ajit Pai. “If true, it would be inappropriate for the FCC to leverage its power as a regulator to influence regulated companies to further its agenda in seeking a more friendly court.”

The FCC order focused on easing deployment of 5G infrastructure. The primary tenets of the FCC’s order included:

  • Banning local regulations designed to prohibit wireless infrastructure deployment;
  • Standardizing the fee structure cities can charge for reviewing small cell projects;
  • Establishing a 60-day shot clock for attaching small cells to existing structures and 90 days for new builds;
  • And setting “modest guardrails on other municipal rules that may prohibit service.”

The order drew immediate protests from some civic leaders that the FCC was overstepping its bounds and undercutting local control of infrastructure issues. It went into effect on Jan. 14th, after surviving a legal challenge from some municipalities that questioned the FCC’s authority in the case.

But four network operators sued as well, arguing that the FCC did not go far enough in removing infrastructure deployment barriers – AT&T, for instance, complained that the FCC had refused to adopt the stance that infrastructure placement would be “deemed granted” when a state or local government entity failed to act on an access request within a reasonable amount of time – and they filed in four different federal courts. AT&T sued in the D.C. circuit court; Verizon in the Second Circuit court, which covers New York, Connecticut and Vermont; Sprint filed in the Tenth Circuit, which covers a number of Midwest and Western states from Kansas to Utah and Arizona; and Puerto Rico Telephone Company filed in the First Circuit court, which has jurisdiction over the territory as well as several Northeastern U.S. states. Meanwhile, cities and municipalities had filed legal protests against the FCC’s action in the Ninth Circuit, which covers West Coast states including California. A lottery procedure consolidating the cases, triggered by the filing of the cases in multiple federal court districts, initially moved the cases into the Tenth Circuit. A motion from the municipal parties moved it back to the Ninth Circuit, according to the letter from House Democrats.

The House committee asked Pai for documents related to whether the FCC had communications with FCC licensees related to the legal challenges (or potential legal challenges) of the infrastructure order; which people were involved in those communications, and whether anyone at the FCC urged a network operator to pursue a legal challenge. The committee also wants to know if anyone at the FCC has “threatened or taken adverse action” against licensees who refused to challenge the order, including delaying items or issues of interest to the licensees.

RCR Wireless News has reached out to the FCC – which is back to work after the prolonged partial government shutdown – for comment.

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