FCC’s Clyburn Hints Title II Repeal Could Impair Federal Small Cell Siting Reform

The Federal Communications Commission is currently in the midst of efforts to streamline infrastructure siting requirements for telecommunications companies, having recently undertaken a review of how state and local processes affect the speed and cost of deployments. But FCC Commissioner Mignon Clyburn hinted the FCC’s plan to step in on the state and local levels and apply one cohesive framework for siting could be hampered by its separate attempts to roll back Title II regulation.

Speaking at the Southeastern Association of Regulatory Utility Commissioners conference in Atlanta, Commissioner Clyburn said a reversal of Title II would do more than erase the foundation for net neutrality. It would also undermine the basis for universal service programs and streamlining pole attachment regulations. Without Title II, Commissioner Clyburn noted, broadband providers who do not also provide a cable or legacy voice service will not be able to take advantage of the rights granted to them under section 224 of the Communications Act of 1934. “There is a lot of talk in Washington right now about preempting states and localities in the context of both tower siting and rights-of-way,” Commissioner Clyburn observed. “But they propose to rely on section 253 of the Act to do so. That provision can only be used if the provider is offering a telecommunications service. I am not sure how a 5G deployment with a LTE and VoLTE fallback will qualify as telecommunications service within the meaning of the Act if the majority’s attempt at reclassification goes through.” Commissioner Clyburn indicated she disagreed with the blanket preemption of localities in the management of their rights-of-way, noting that this approach “ignores that some of the most interesting ideas in infrastructure deployment have come out of the states and municipalities.”