Photo of Al CatalanoPhoto of Eric Gotting

In its September 2018 small cell order, the FCC sought to speed carrier deployment of 5G wireless facilities in public rights-of-way by removing “barriers to infrastructure investment.”  As we noted in an earlier entry, the order greatly restricts the ability of state and local jurisdictions to manage their own rights-of-way or to receive more than costs for carrier use of municipal property. As expected, the order was appealed by numerous localities across the country on constitutional and other legal grounds and is currently pending before the 9th Circuit, with opening briefs now filed.

The FCC’s order, however, involves more than aesthetic and financial concerns for local jurisdictions and its citizens. The new 5G environment envisioned by carriers will rely on millimeter wavelengths that travel only short distances. As a result, small cell poles need to be placed within 100 feet or so from each other with transmitters about 30 feet above the ground in direct-line-of-sight with homes and businesses. This 5G densification is projected to lead to hundreds of thousands of small cell facilities across the country, subjecting the public to emissions from multiple transmitters at close ranges.

Prior to release of the order, a number of parties asked the FCC to first complete a stalled 2013 proceeding evaluating whether the Commission’s existing RF safety standards, adopted in 1996, would adequately protect the public’s health from RF emissions in this new 5G environment. Without any analysis of more recent health studies, the FCC refused to review its 23 years-old standards, simply stating “[w]e disagree” with concerns raised about RF emissions from 5G small cell facilities. In light of the FCC’s refusal to address the RF issue, Montgomery County, Maryland appealed the order on grounds that the FCC violated the National Environmental Policy Act and the Administrative Procedure Act by failing to reevaluate RF standards in light of recent research and to determine whether these standards remain protective of human health.