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This third entry on the FCC’s ongoing review of RF exposure limits highlights the Notice of Inquiry that focuses on possible changes to the current RF exposure limits.

The NOI reiterates that the current exposure limits were adopted in 1996 and while expressing confidence in these limits, the NOI observes that intervening research studies, the ubiquity of device adoption, advances in technology, and developments in international standards support updating the record on RF exposure limits. Accordingly, the NOI seeks comment on whether the current exposure limits should be changed, and the costs and benefits of any suggested changes. The FCC explains its “intent is to adequately protect the public without imposing an undue burden on industry.” It adds that its goal “is to open a science-based examination of the efficacy, currency, and adequacy of the Commission’s exposure limits for RF electromagnetic fields.”

The tenor of the NOI is that, while safety concerns regarding the exposure limits have not been scientifically substantiated, there is extensive research and standards bodies activity on many aspects related to RF exposure.  These include partial-body and whole-body averaging of exposure; averaging area for power density; averaging time for limits; among others. The FCC must review a vast array of technical studies and information compiled since the adoption of the current limits as the agency consider whether and how to proceed. The views of other federal agencies with health and safety expertise will be particularly important to the FCC in this process.

Specific issues raised in the NOI may categorized as follows:

Exposure Limits. Issues of interest to the FCC include partial-body and whole-body averaging of exposure; averaging area and averaging time considerations; whether there should be peak pulsed field limits and/or limits on contact RF currents; whether the frequency range for FCC limits should be broadened from the current 100 kHz-100 GHz range; and conductive implanted objects.

Consumer Information. The FCC notes that it makes a variety of information on RF electromagnetic fields available to the public, but it seeks comment on whether it should make additional information available. If so, what form would be most useful to the public. It also asks whether it should require that more information be made available in equipment manuals, at point-of-sale, or on websites.

Exposure Reduction Policies. The FCC asks whether, in addition to its current “conservative, bright line limit[s]”, it should consider a general technical approach to reduce exposure below its limits in some situations, requesting  comment on cost-benefit and other trade-offs of such an approach and that interested parties specify the specific circumstances, tangible benefits, and impact on the cost and performance of  such an approach.

Evaluation. The FCC defines evaluation as “the determination of compliance with its exposure limits by measurement or computation.” The FCC requests comment on the pros and cons of measurement versus computation and variants thereof. In addition, the FCC requests comments on the effectiveness of its SAR and MPE limits in certain situations and whether any of the non-bindings matters in its Knowledge Database (KDB) should be made mandatory.

Portable RF Sources. The FCC notes that, although Supplement C of EOT Bulletin 65 recommends maintaining separation of about one inch during the testing of consumer portable body-worn devices, many radiating devices may be used without any separation from the human body (e.g., Bluetooth headsets). The FCC states that its calculations suggest that some devices may not be compliant with its exposure limits without the use of a spacer to maintain a separation distance when body-worn. It asks for comments on whether it should consider zero spacing or actual contact with the body when testing some devices. 

As this summary discussion demonstrates, the NOI is extremely broad and is important to equipment manufacturers, spectrum licensees, and many classes of RF device users.  It is possible that, after developing an up-to-date record on appropriate exposure levels, the FCC may decide that the current exposure limits remain valid.  The FCC frequently states that the current values are cautious and in many cases, equipment operates below the permitted levels.

On the other hand, if the FCC concludes that changes in the exposure limits are necessary or appropriate, the FCC likely would issue a Notice of Proposed Rulemaking setting forth the basis for and the details of the changes it proposes.

We believe the FCC’s next action in this proceeding will be adoption of many of the changes it proposed in its FNPRM discussed in the second entry of this three-part series, including some form of the more detailed signage requirements. Those signage changes, if adopted as proposed, will impose tangible costs for many FCC licensees. These include a significant financial impact–the costs of determining where signage is required and obtaining and installing the new signage.   There is also the potential for significant fines from the FCC if licensees do not fully comply with the updated FCC rules.

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Radiofrequency exposure limits and mitigation requirements are an area of special expertise at Keller and Heckman LLP. With our wide-ranging and deep experience in the areas of telecommunications and health and safety, we stand ready to assist you with any questions or concerns about these regulatory requirements. Please feel free to contact the author at

Part One of this series summarized the FCC’s long-pending proceeding and initial set of decisions on human exposure to radiofrequency (RF) fields. Generally, the more complicated and difficult decisions were deferred.  In light of Chairman Pai’s commitments to Congress, we expect the FCC to resolve at least some of the remaining issues in 2018. Let us now examine areas that are likely up next for decision.

In addition to the decisions in its First Report and Order (R&O), the FCC adopted a Further Notice of Proposed Rulemaking (FNPRM) and Notice of Inquiry (NOI). The FCC summarized the FNPRM as follows:

We are proposing to broadly revise and harmonize the criteria for determining whether single or multiple fixed, mobile, or portable RF sources are subject to routine evaluation for compliance with the RF exposure limits or are exempted from such evaluations.  Additionally, we propose clarifications of evaluation requirements for portable and medical implant devices.  We also propose to adopt specific new requirements for signs and barriers at fixed transmitter sites to ensure compliance with public and occupational exposure limits.  Further, we propose a clarification of the definition of transient exposure for non-workers exposed at levels up to occupational limits.

[We] propose establishing general exemptions from evaluation to determine compliance in place of existing service-specific “categorical exclusions.”  These proposed exemptions involve simple calculations to establish whether any further determination of compliance is necessary. .  .  .  The new, general exemptions would instead apply to all subparts authorizing RF sources. .  .  .  Given the trend toward opportunistic spectrum access to allow services to utilize multiple bands of frequencies with various power limits, inclusion of all services is necessary to better ensure compliance with our exposure limits.

Important proposed changes in the FNPRM include:

  1. Clarified definitions of “power” for consistency throughout the Rules.
  2. Changes to general exemption criteria based on power, distance, and frequencies involved for all services using fixed, mobile, and portable transmitters including implants; elimination of distinctions between different services.
  3. A blanket exemption for single transmitter operations with up to 1 milliwatt (mW) available maximum time-averaged power independent of frequency and service; minimum two-centimeter separation between multiple transmitters operation at up to 1 mW.
  4. For single transmitter operation above 1 mW, requiring routine environmental evaluation above a “sliding scale” of values for minimum distance as a function of wavelength and maximum power as a function of frequency and distance for five frequency ranges from 0.3-100,000 MHz. The FNPRM acknowledges that the formulas used for the sliding scale are based on worst-case calculations but states that they trigger further evaluation, not necessarily a finding of non-compliance with permitted exposure limits.
  5. A multi-step equation to sum the effect of multiple fixed transmissions in proximity to each other and determine whether further evaluation is required.
  6. Additional exemption criteria based primarily on Specific Absorption Rate (SAR) limits for single fixed, mobile, and portable transmitters in the frequency range 300 MHz-6 GHz at distances of 0.5-40 centimeters from a human body and formulas to determine whether additional evaluation is required for multiple portable and multiple portable and mobile transmitters.

The FNPRM also proposes changes regarding mitigation of exposure to RF, stating that “. . . mitigation matters involve post-evaluation procedures to ensure that our exposure limits are not exceeded. Such measures include labels, signs, barriers, occupational training, and enforcement.” Specifically, these proposals include:

  1. Clarification of transient exposure and how to apply exposure limits in controlled environments with respect to averaging time.
  2. Specific new training, access restriction, and signage requirements for fixed transmitter sites with a new four-category system based on an Institute of Electrical and Electronics Engineers (IEEE) standard.

There are four-categories of proposed signage requirements.  Signage would be required for Categories 2-4 but optional for Category 1.

Category 1 is exposure up to the General Population (GP) limit. No signage would be required. Green “INFORMATION” signs stating that a transmitting source of RF energy is nearby but compliant with FCC exposure limits would be optional.

Category 2 is exposure above the GP limit and up to the Occupational (O) limit. Signs and access control would be required surrounding the area in which the GP limit is exceeded. Blue “NOTICE” signs would have to be large enough to be visible at the separation distance required to comply with the GP limit. Training would be required for occupational personnel with access to the area. Use of personal RF monitors would be recommended but not required.

Category 3 is exposure above the O limit and up to 10 times the O limit. In addition to the Category 2 mitigation requirements, yellow “CAUTION” signs would be required surrounding the area in which the O limit is exceeded. Transient individuals would not be permitted in the Category 3 area. Use of personal protective gear would be recommended but not required.

Category 4 is exposure to more than 10 times the O limit. In addition to the Category 3 mitigation requirements, orange “WARNING” signs would be required where the O limit could be exceeded by a factor of 10 and red “DANGER” signs would be required wherever immediate and serious injury would occur. If power reduction would not sufficiently protect in the event of human presence considering additional use of optional personal protective equipment, lockout/tagout procedures would have to be followed.

The signage for Categories 2, 3, and 4 would require inclusion of the “radiating antenna” RF energy advisory symbol, an explanation of the RF source, behavior necessary to comply with exposure limits, and contact information for a timely response in addition to the color and key words listed for each category.

The FNPRM states that barriers may not be appropriate for all Category 2 environments and that the FCC continues to support suggested Engineering and Technology (OET) exceptions not to require barriers in remote areas with unlikely public access. The FNPRM also reiterates the principle that licensees cannot exclusively on natural barriers for protection unless specifically approved by the FCC on a case-by-case basis. The FCC Enforcement Bureau can require corrective action and impose fines or other sanctions for non-compliance.

This is the first entry of three regarding the FCC’s ongoing proceeding addressing human exposure to radio-frequency (RF) fields.  Although the FCC proceeding has been pending for some time, Chairman Pai has informed Congress that further action is a Commission priority.  Thus, we expect the FCC to adopt one or more orders in this proceeding in 2018.

Exposure to RF emissions is a persistent concern for segments of the public and some public health and workplace safety advocates.  With ever-increasing consumer adoption of wireless communications including unlicensed operations and in-building Wi-Fi, the emergence of small cells, the Internet of Things (IoT), and 5G implementation, a review of existing rules, largely unchanged for over 20 years, is warranted to consider more current research and studies and to maintain the credibility of the FCC’s regulations regarding RF exposure limits.

The FCC regulations on RF exposure limits impact a wide range of business interests—companies which manufacture equipment, including wireless medical devices, businesses which use radio equipment in their delivery of other goods and services, public safety organizations of all types, and the general public– both as cell phone or other wireless device users and as beneficiaries of countless wireless applications.  Any change in the current RF emission limits could cause significant expense for these groups, especially if there are changes in the limits governing devices having high numbers of consumer adoption—smart phones, tablets and WiFi routers.

The long-pending FCC proceeding addresses a very broad range of issues.  The FCC re-states its confidence in the current exposure limits adopted in 1996.  However, it acknowledges that intervening research, the ubiquity of device adoption, advances in technology, and developments in international standards warrant a far more current and up-to-date record on these matters.

The current FCC limits differentiate between general public and occupational/controlled exposure limits. The latter apply to personnel with expertise and training regarding RF exposure safety.  For that reason, the exposure levels are higher than for the general public.  In today’s increasingly wireless world, a closer look at exposure levels for the general public appears warranted.

2013 First Report and Order

The current FCC proceeding actually dates back to March 2003, when the FCC issued a Notice of Proposed Rule Making (NPRM) to “provide more efficient, practical, and consistent application of compliance procedures” relating to rules “to ensure that the public is appropriately protected from any potential adverse effects from RF exposure . . . .”  In March 2013, the FCC adopted a First Report and Order (R&O), Further NPRM, and Notice of Inquiry (NOI).

In the First R&O, the FCC clarified power evaluation procedures and references to determine compliance with FCC limits and made changes to its regulations regarding labeling of RF devices.  Key changes include:

  1. Amending the rules to reference the underlying whole-body and partial-body exposure limits for SAR (Specific Absorption Rate) and to allow evaluation of SAR instead of power density or field strength for demonstrating compliance for fixed and mobile RF sources below 6 GHz.
  2. Maintaining use of maximum permissible exposure (MPE) as a basis for evaluation subject to certain conditions.
  3. Discontinuing Supplement C of OET Bulletin 65, which provided guidance on RF limits for portable and mobile devices because more updated information is available in OET’s “Knowledge Database” (KDB).
  4. Classifying the outer ear (“Pinna”) as an “extremity” and subject to exceptions for localized SAR limits for “extremities.”
  5. Adopting more specific labeling requirements for occupational/controlled exposure to mobile and portable devices. The occupational/controlled limits apply when individuals are “fully aware” and can “exercise control” over exposure.  For these situations there is a two-tiered approach: (1) written and/or verbal information must be provided to an individual that exposure is part of their employment, and (2) appropriate training regarding work practices to ensure awareness and control must be provided.
  6. For fixed sites with multiple transmitters, noting that failure to comply with the rules can result in penalties for all transmitter operators whose systems contribute significantly to the exposure.
  7. Declining to require a new evaluation for existing sites that were excluded from evaluation under its prior evaluation criteria.

The regulated community did not raise significant objections to these rules largely because there were few substantive changes from existing requirements.  The next phases of the proceeding may prove more challenging for device manufacturers and services providers.

Part Two will review the changes proposed by the FCC in its Further Notice of Proposed Rulemaking.

Many in the wireless industry are aware of the FCC rulemaking proceeding proposing regulatory changes to streamline the expansion of wireless infrastructure (WT Docket 17-79).  A basic premise of this proceeding is the tremendous potential of 5G wireless technology and the increased capacity needs and vast expansion of infrastructure supporting wireless networks that will be needed to deploy 5G. The proceeding focuses on and identifies potential obstacles to rapid deployment of wireless infrastructure at the local level.

For wireless carriers, small wireless cells are important because small cells support greater re-use of available spectrum and bring the wireless network closer to users and devices. Those attributes are very important to the developing Internet-of-Things (IOT).

Action by the FCC. In Nov. 2017, the FCC took one action in this docket. It excluded from required review under Section 206 of the National Historic Preservation Act (NHPA) replacement utility poles if these conditions are met:

(i)   The original structure

(A) Is a pole that can hold utility, communications, or related transmission lines;

(B) Was not originally erected for the sole or primary purpose of supporting antennas that operate pursuant to a spectrum license or authorization issued by the Commission; and

(C) Is not itself a historic property.

(ii)  The replacement pole—

(A) Is located no more than 10 feet away from the original pole, based on the distance between the centerpoint of the replacement pole and the centerpoint of the original pole; provided that construction of the replacement pole in place of the original pole entails no new ground disturbance (either laterally or in depth) outside previously disturbed areas, including disturbance associated with temporary support of utility, communications, or related transmission lines.  For purposes of this paragraph, “ground disturbance” means any activity that moves, compacts, alters, displaces, or penetrates the ground surface of previously undisturbed soils;

(B) Has a height that does not exceed the height of the original pole by more than 5 feet or 10 percent of the height of the original pole, whichever is greater; and

(C) Has an appearance consistent with the quality and appearance of the original pole. (FCC 17-153, footnotes omitted.)

What’s a “Small Cell.” There is no succinct, agreed definition of the term “small cells.” One FCC point of guidance is in the August 2016 First Amendment to the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas between the FCC, the National Conference of State Historic Preservation Officers, and the Advisory Council on Historic Preservation.

The amendment lists requirements for exemption from review under Section 106 of the NHPA for “collocation of small wireless antennas and associated equipment on buildings and non-tower structures that are outside of historic districts and are not historic properties.” The specified limits of the “small wireless antennas and associated equipment” are:

  1. Each individual antenna, excluding the associated equipment (as defined in the definition of Antenna in Stipulation l.A.), that is part of the collocation must fit within an enclosure (or if the antenna is exposed, within an imaginary enclosure, i.e., one that would be the correct size to contain the equipment) that is individually no more than three cubic feet in volume, and all antennas on the structure, including any pre-existing antennas on the structure, must in aggregate fit within enclosures (or if the antennas are exposed, within imaginary enclosures, i.e., ones that would be the correct size to contain the equipment) that total no more than six cubic feet in volume; and,
  2. All other wireless equipment associated with the structure, including preexisting enclosures and including equipment on the ground associated with antennas on the structure, but excluding cable runs for the connection of power and other services, may not cumulatively exceed:
    1.  28 cubic feet for collocations on all non-pole structures (including but not limited to buildings and water tanks) that can support fewer than 3 providers; or,
    2.  21 cubic feet for collocations on all pole structures (including but not limited to light poles, traffic signal poles, and utility poles) that can support fewer than 3 providers; or,
    3.  35 cubic feet for non-pole collocations that can support at least 3 providers; or,
    4.  28 cubic feet for pole collocations that can support at least 3 providers;

State Legislation. In addition to the FCC proceeding, there has been a flurry of actions at the state level that are changing the regulatory landscape for small cells. There has been a major campaign underway by the wireless industry which has achieved impressive results. A list of state legislative initiatives considered in recent years includes about 20 states, many of which have enacted new legislation limiting the authority of local governments regarding small cell installations on public right-of-way.

These proposed state law changes typically limit or eliminate the authority of local governments to determine where in local right-of-way small cell equipment can be installed; limit the time for review by local governments; and limit the application and/or right-of-way leasing charges that can be imposed. For example, Virginia enacted S.B. 1282 earlier this year. It provides that localities cannot require special exceptions or special use permits for small cell facilities installed on existing structures where providers already have permission to co-locate equipment. It imposes a 10-day limit to notify carriers of an incomplete application and a 60-day limit to approve or deny applications. It limits fees to $100 each for up to five small cell facilities on an application and $50 for additional facilities. It prohibits fees for carrier use of municipal rights-of-way, except for zoning, subdivision, site plan, and comprehensive plan fees. It mandates that approval for a permit shall not be unreasonably conditioned, withheld, or delayed.

The Virginia law uses these definitions:

“Micro-wireless facility” means a small cell facility that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height and that has an exterior antenna, if any, not longer than 11 inches.

“Small cell facility” means a wireless facility that meets both of the following qualifications: (i) each antenna is located inside an enclosure of no more than six cubic feet in volume, or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than six cubic feet and (ii) all other wireless equipment associated with the facility has a cumulative volume of no more than 28 cubic feet, or such higher limit as is established by the Federal Communications Commission. The following types of associated equipment are not included in the calculation of equipment volume: electric meter, concealment, telecommunications demarcation boxes, back-up power systems, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services.

State legislation along these same lines has been adopted in many other states in the last year. Of course, each state’s law varies and must be read carefully to determine its changes.

In contrast, Senate Bill 649 was passed this year by the California legislature but was ultimately vetoed by the Governor. S.B. 649 streamlined the local approval process for small cell sites and limited fees for small cells installed on municipal infrastructure to $250/year with a defined cost of living increase formula. The bill defined small cells as follows:

(3) (A) “Small cell” means a wireless telecommunications facility, as defined in paragraph (2) of subdivision (d) of Section 65850.6, or a wireless facility that uses licensed or unlicensed spectrum and that meets the following qualifications:

(i) The small cell antennas on the structure, excluding the associated equipment, total no more than six cubic feet in volume, whether an array or separate.

(ii) Any individual piece of associated equipment on pole structures does not exceed nine cubic feet.

(iii) The cumulative total of associated equipment on pole structures does not exceed 21 cubic feet.

(iv) The cumulative total of any ground-mounted equipment along with the associated equipment on any pole or nonpole structure does not exceed 35 cubic feet.

(v) The following types of associated ancillary equipment are not included in the calculation of equipment volume:

(I) Electric meters and any required pedestal.

(II) Concealment elements.

(III) Any telecommunications demarcation box.

(IV) Grounding equipment.

(V) Power transfer switch.

(VI) Cutoff switch.

(VII) Vertical cable runs for the connection of power and other services.

(VIII) Equipment concealed within an existing building or structure.

In his veto message, the Governor stated:

This bill establishes a uniform permitting process for small cell wireless equipment and fixes the rates local governments may charge for the placement of that equipment on city or county owned property, such as streetlights and traffic signal poles. There is something of real value in having a process that results in extending this innovative technology rapidly and efficiently. Nevertheless, I believe that the interest which localities have in managing rights of way requires a more balanced solution that the one achieved in this bill.

That suggests the possibility of another effort to address these issues during the next legislative session in California.

Federal Legislation. There is also proposed Federal legislation regarding the approval process for small cells. On October 19, Senators Wicker (R-MI) and Cortez Masto (D-NV) introduced S. 1988, the Streamlining Permitting to Enable Efficient Deployment of Broadband Infrastructure Act of 2017 or the “SPEED Act”.

This legislation would exempt small wireless facilities from environmental and historic reviews under the National Environmental Policy Act (NEPA) if they meet these conditions: (1) They are being deployed in public right of way and are not higher than an existing structure in the public right of way; or (2) They are serving as a replacement for an existing small cell and are substantially similar (as defined by the FCC) to the small cell being replaced. It would also exempt wireless towers from NEPA review if located in public right of way and the antenna tower or support pole is not more that the higher of 50 feet tall or 10 feet higher that any existing structure in the public right of way and does not have guy wires. The SPEED Act uses FCC size and other applicable requirements as its definition of small wireless facilities.

Prospects for enactment are not clear at this time.

If you would like additional information regarding these actions, please contact me or any other attorney in the Telecommunications Practice Group at Keller and Heckman LLP.

On January 30, President Trump signed an Executive Order on Reducing Regulation and Controlling Regulatory Costs. The Executive Order sets out a number of related concepts focused limiting Federal regulations, including a “Regulatory Cap” that is implemented through three inter-related provisions

  1. “Section 2(a): Unless prohibited by law, whenever an executive department or agency (agency) publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed.
  2. Section 2(b):. .  .  [T]he heads of all agencies are directed that the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget (Director).
  3. Section 2(c):. .  . [A]ny new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.

During my years at the Federal Communication Commission, I worked on implementation of a one-for-one deregulation directive by the FCC Chairman that specified a new regulation could not be added unless an existing regulation was deleted. That initiative did not call for a comparison of costs of the proposed regulations and the proposed deletions; sometimes the outcome was the addition of a substantive and potentially burdensome new regulation “offset” by the elimination of an outdated or largely irrelevant regulation that no longer had significant impact and did not provide any real cost savings. Provision 2(c) of the Executive Order appears to call for a cost- based approach to deregulation.

An important legal distinction is that the FCC is not bound by the Executive Order because the FCC is an independent regulatory agency, rather than a part of the Executive Branch of the Federal Government. However, there is good reason to believe that the FCC may choose to emulate the Executive Order based on previous statements made by then minority Republican Commissioners Pai and O’Reilly in response to the adoption of new FCC rules, regulations and policies they viewed as either unwarranted or unduly burdensome.

In a December 2016 speech, prior to being named FCC Chairman, Commissioner Pai offered these comments: “In the months to come, we also need to remove outdated and unnecessary regulations.  As anyone who has attempted to take a quick spin through Part 47 of the Code of Federal Regulations could tell you, the regulatory underbrush at the FCC is thick.  We need to fire up the weed whacker and remove those rules that are holding back investment, innovation, and job creation.  Free State and others have already identified many that should go.  And one way the FCC can do this is through the biennial review, which we kicked off in early November.  Under section 11, Congress specifically directed the FCC to repeal unnecessary regulations.  We should follow that command.”

The biennial review referred to in then Commissioner Pai’s speech is underway in an FCC docket. The Public Notice issued in late December has a 57-page Appendix listing the rules adopted by the FCC 10 years ago and now due for review. Comments in that proceeding are due on or before May 4, 2017.  As part of the biennial review, Chairman Pai could direct that the FCC follow a substantially similar approach to the Executive Order.

The change in attitude toward regulation at the FCC by the new Chairman and majority makes this the ideal time for an entity to compile its wish list of FCC regulations to eliminate as unnecessary or streamline to make less burdensome or more cost effective. The alignment of the Executive Order, Chairman Pai’s deregulatory mindset, and the biennial review are an opportunity that should be seized and quickly.

The attorneys in the Telecommunications Practice Group at Keller and Heckman would welcome the opportunity to review your ideas on a courtesy basis and discuss how we can provide our assistance in presenting your proposals to the Commission.

There are familiar maxims in many sports, such as “Live by the 3-point shot, die by the 3-point shot” in basketball. The message being that high-risk tactics that bring temporary success often reverse and lead to ultimate defeat.

In recent years under Chairman Tom Wheeler, the FCC has decided many major decisions along bitterly divided 3-2 party line votes among the five Commissioners. The two Republican Commissioners have often accused the three Democratic Commissioners of ignoring the record before the FCC, ignoring past FCC precedent or the Communications Act, and refusing to consider other points of view or to reaching compromises across party lines.  As a general rule, the Republican Commissioners preferred approaches and policies grounded in technology or competition, rather than additional regulation.

This recent history is very unusual for the FCC. In prior administrations, most telecommunications policy-making at the FCC has been largely non-partisan. Policy differences between Democratic and Republican Commissioners were usually more differences of emphasis or priorities rather than on fundamentals, with both parties generally supporting a significant amount of deregulation and changes to introduce and support new technologies and services.

Historically, there has been a high degree of comity among the FCC Commissioners across party lines most of the time. Typically, negotiations between and among Commissioners’ offices tried to eliminate or reduce as much as possible strong disagreements on decisions.  There were exceptions of course, but they were exceptions not the normal course of business month in and month out.

The current FCC has operated very differently. At most of its monthly public meetings, major FCC decisions have been adopted by party-line 3-2 votes.  The divisions have been marked by strong dissents that attack both the substance and process of the FCC decision-making.  Moreover, there has been the same kind of unyielding disagreement between the majority Democratic Commissioners and the Republican Chairs of Congressional Committees and Subcommittees responsible for telecommunications in the House and Senate.

During calendar year 2015, these FCC decisions at public meetings are examples of the divided process:

  • January: 2015 Broadband Progress Report in which the FCC adopted 25 Mbps downstream and 3 Mbps upstream as the new benchmark for fixed broadband service.
  • February: Open Internet Order in which the FCC adopted a new regulatory framework for broadband and reclassified fixed and mobile broadband Internet Access Service as a telecommunications service, subject to Title II of the Communications Act. Though affirmed by the D.C. Circuit, a petition for rehearing en banc remains pending.
  • February: Declaratory Order pre-empting North Carolina and Tennessee laws limiting the service areas of municipal broadband providers to their municipal boundaries. The FCC decision was reversed on appeal.
  • June: Changes to the Lifeline Program.
  • July: Designated Entity Rules for Spectrum Auctions.
  • August: IP Technology Transition and Copper Loop Retirements.
  • August: Incentive Auction Bidding Procedures.
  • October: Inmate Calling Rates. The FCC was reversed on appeal but the matter is still pending.

This trend continued into 2016 as the FCC adopted its Broadband Consumer Privacy Rules. However, it appears that the current FCC leadership is now heeding the request of House and Senate Republicans to defer action on potentially controversial items, including several that had been placed on the agenda for the Commission’s November Open Meeting, one of which was special access service rate reform.

Because of the magnitude of the policy disagreements at the FCC between Democratic and Republican Commissioners, many FCC observers believe that a number of these recent decisions will be scaled-back or reversed once Republican Commissioners acquire a majority or as the Republican majorities in the House and Senate focus on telecommunications policy including a possible re-write of the Communications Act of 1934, as amended.

Soon after President-Elect Trump is sworn in, one of the two current Republican Commissioners will be named the Acting FCC Chairman. While this will not immediately change the majority-minority status of Democrats and Republicans at the FCC, it would be no surprise if then ex-Chairman Wheeler resigns rather than continue on as a Commissioner.  Democratic Commissioner Rosenworcel’s term expires as the current Congress ends, unless the Senate confirms her reappointment to another term.  These potential transitions in FCC leadership raise the possibility of a 2-1 Republican majority at the FCC until vacancies are filled.

Moreover, even if there is still a Democratic majority on the FCC, the Acting FCC Chairman will have authority to direct the agenda and the staff of the FCC. Some policies may change immediately under a Republican Acting Chairman, such as the very large forfeitures that have been imposed by the Enforcement Bureau during the past two years.  The Republican Commissioners argued that many of these forfeiture decisions lacked a sound basis or objective, but were, in fact, unauthorized policy-setting by the staff.

The most important question is whether there is reasonable hope that a less partisan decision-making process will return after what may well be a second exceptional period of divided decision-making under a new Republican majority at the FCC. The obvious value of a consensus-driven approach is that the telecommunications industry and public could rely on FCC decisions having long-term viability and not being subject to reversal whenever a new President takes up residency at the White House.

The serious risk is that after potentially two significant periods of highly politicized decision-making at the FCC, highly partisan decision-making becomes the new normal. In that case, the telecommunications industry will find itself on a policy roller coaster ride for many years to come and that is unlikely to sustainably advance the interests of either the industry or the public.

The FCC released a Public Notice on August 8 announcing an Amendment to the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas. The NPA Amendment was entered into by the FCC, the Advisory Council on Historic Preservation (ACHP) and the National Conference of State Historic Preservation Officers (NCSHPO). The original NPA was entered into in 2001 to address the collocation of wireless antennas and the obligations of the FCC and infrastructure installers under Section 106 of the National Historic Preservation Act (NHPA). At that time, the issues related primarily to collocation on traditional “macro” towers.

The Amendment establishes a series of new exclusions from the FCC’s National Historic Preservation Act review process for Distributed Antenna Systems (DAS) and small cell facilities, recognizing the limited potential of these facilities to affect adversely historic sites and properties. The Pubic Notice details a series of new Stipulations to the NPA that will exclude these facilities from routine review if specific conditions are met for the wireless equipment. For example, the Amendment excludes collocation of small wireless antennas and associated equipment (i) on buildings and non-tower structures that are outside of historic districts or that are not historic properties, (ii) small or minimally visible wireless antennas and associated equipment in historic districts or on historic properties, and (iii) installed as replacements of small wireless antennas and associated equipment. The Amendment spells out “volume limits” that the equipment must meet to qualify for these exclusions.

This is the latest Commission action to facilitate deployment of much-needed additional wireless infrastructure to support the burgeoning demand for wireless broadband throughout the U.S. It follows Federal legislation in 2012 and significant actions by the FCC to implement that legislation.  In its major rulemaking on the subject adopted last year, the FCC noted the need for additional relief from NHPA reviews for small cell wireless infrastructure but expressed a preference for implementing these changes through the program alternative process.

In the Public Notice, the FCC noted the importance of small wireless infrastructure in enabling “5G” wireless service. 5G is still in its definitional stage, but it is characterized by much greater throughput and ubiquitous availability of service, which will require substantially more wireless infrastructure.

Kudos to all parties involved in easing the unnecessary regulation impeding new deployments of wireless infrastructure.

Last week was the annual Wireless Infrastructure Show put on by the industry association PCIA – The Wireless Infrastructure Association. The first announcement at the show was a new name for the association–the Wireless Infrastructure Association or WIA—with a new website at  There is no change in the mission or priorities of the association, just dropping an outdated and confusing old acronym dating back to the 1990s.

There was excellent attendance, many keynote speeches, a record number of exhibitors, and a strong education program. I moderated a session on the Tribal Consultation Process with five subject matter experts as speakers. The panelists addressed issues in the current FCC process including sometimes slow response times from Tribal authorities, adequacy of resources for the Tribes to carry out reviews, and appropriateness of fees charged by reviewing authorities. The panel agreed that significant progress has been made on clearing sites for Positive Train Control, the deadline for which was recently extended.

At other panels, tower company CEOs and CFOs noted that the wireless infrastructure business is not booming right now as the cellular providers have mustered their capital for the FCC’s current television spectrum incentive auction but predicted that it will ramp up again within the next 18 months in the normal cycle of this business.

Next year’s Wireless Infrastructure Show will be held May 22-25 in Orlando, FL.

I had the pleasure of speaking at the first annual Wireless West Conference in Anaheim, CA on April 20. Wireless West was organized and managed by five state wireless associations—Arizona, California, Colorado, Nevada, and Northwest (which incorporates Oregon and Washington). 400 attendees sold out the event.

My panel was titled “Section 6409 vs. Reality” and we discussed experience in the application of Section 6409, the federal legislation that pre-empts local zoning of collocation of antennas and equipment on existing wireless sites under implementing rules of the Federal Communications Commission.  Our panel concluded that 6409 has broadly improved local action on collocation requests, but some jurisdictions are still evaluating the statute and its impact on their processes.  The panel noted that there are some instances where the detailed regulations adopted by the FCC are proving confusing for local governments.

Section 6409 became law in 2012 after a legislative campaign conducted by PCIA – The Wireless Infrastructure Association while I was the CEO of that association. The legislation was enacted because Congress decided that collocation was in the best interests of all parties. It enables existing wireless sites to serve more carriers and their customers. That has obvious economic benefit to the businesses involved and also alleviates some of the pressure on local governments to authorize more and more sites, which can be locally controversial.

Based on the success of this initial conference, Wireless West likely will be an annual event that we expect to grow in size and impact.