As policymakers and regulators struggle to keep pace with corporate deal makers (read Comcast-Time Warner Cable merger and Comcast-Netflix deal) and address the structures undergirding our Nation’s electronic communications laws, no two aspects of that undertaking (with the possible exception of cybersecurity) are more fundamental to economic vitality, competitiveness and “the pursuit of happiness” than spectrum and infrastructure.  Spectrum without the infrastructure – and, conversely, infrastructure without the spectrum – does little good.  We cannot use one without the other; they are two sides of the same coin. And while the focus on spectrum battles at times has been blinding, until recently at least, infrastructure has made few headlines.

For decades the FCC has been in the business of trying to ensure the deployment and operation of critical communications infrastructure.  Net Neutrality and mega mergers have been grabbing headlines, but a “sleeper” FCC rulemaking proceeding seeks to streamline siting rules for broadband deployment.[1]  Immediately at issue are Commission proposals to simplify regulatory review for wireless facilities, including both distributed antenna systems and small cells.    Small cell deployments, in particular, are an increasingly attractive, cost-effective option for mobile network operators seeking to maximize the efficiency and quality of their licensed spectrum.  Aptly named, small cells are smaller wireless antenna units – as opposed to the larger “macro” cells traditionally hosted on large wireless towers – used to increase the capacity and coverage of a wireless network and are often affixed to such objects as utility poles, street-light poles or traffic signal support structures located in the public rights-of-way.

The Commission’s proposals in the rulemaking proceeding – released in September 2013 – focus on streamlining environmental and historical preservation review of new antennae and supporting structures, and implementation of the 2012 Spectrum Act’s limitation on state and local government restrictions on modifications to existing wireless facilities.   The Commission’s proposals have been broadly lauded by industry which sees the FCC’s proposals as an efficient, nation-wide mechanism for facilitating broadband deployment.[2]  In particular, wireless carriers and communications infrastructure providers support the Commission proposals and seek their expansion by urging the adoption of broad exemptions for facilities deployed in or near public rights-of-way and the explicit extension of shot-clock safeguards to small cells.

Industry’s universal support for the FCC’s proposals has been matched by local government’s hostility towards them.  State and local governments view the measures as an unwarranted – and unconstitutional – federal incursion into state and local authority.  The local governments generally argue that a “one-size-fits-all” federal approach fails to account for important local considerations, that the local process works, that local approvals are not the causes of deployment delays (economic conditions and carrier investment decisions account for that) and that the FCC’s proposals violate the Tenth Amendment’s prohibition on federal incursion into state and local affairs.[3]

While not yet headline news, and likely to churn ahead beneath other industry developments like the Comcast-Time Warner Cable merger and the FCC’s latest quest to regulate the internet by developing a new “Net Neutrality” framework, the Small Cell proceeding is likely to gather momentum over the next several weeks with the filing of reply comments, ex parte meetings with Commissioners and Commission Staff, “final” rules and apparently inevitable requests for agency reconsideration and review, and, ultimately, judicial appeals.

Reply comments are due March 5, 2014.  For more information about the small-cell proceeding, please contact Sheppard Mullin’s Communications attorneys.