(Please note that this new development discussed at the post directly below may positively impact some of the FCC’s actions regarding preempting local zoning rights.)

The FCC Has No Authority To Overturn State Law Says Court

 

FCC Actions


As with other branches of our government, the Federal Communications Commission (FCC) is pulling out all the stops in an effort to find ways to streamline the deployment of 4g/5g “small” cells.  Following is an update on some of these actions.


1.  On April 20th, 2017, the FCC announced a Notice of Proposed Rulemaking and Notice of Inquiry — WT Docket Nos. 17-79 and 15-180.

“This NPRM [Notice of Proposed Rule Making] examines regulatory impediments to wireless infrastructure investment and deployment and proposes measures to help remove or reduce such impediments. In this section, we address the process for reviewing and deciding on wireless facility deployment applications conducted by State and local regulatory agencies. We propose several potential measures or clarifications intended to expedite such review pursuant to our authority under Sections 332 of the Communications Act.”  

Public comment is open till June 9th, and Reply Comments (replying to comments submitted on this docket) are open through July 10th.  For more information, go to – https://ecfsapi.fcc.gov/file/033043087115/DOC-344160A1.pdf where you will find a 50 page document that is likely more than most of us want to deal with.  But presumably, the gist of it is this docket is intended to “promote the rapid deployment of advanced wireless broadband service to all Americans.” 

According to an employee at the FCC who was quite up on the wireless issues, the Commission does not have to consider matters involving health effects from RF/MW radiation since that is not what they are seeking comment on in this docket.  Basically, the FCC wants us to play ball with them by not addressing the “elephant in the room” – health.  But as small cell deployment can impact people economically or through ADA violations, presumably those issues would be considered on topic.


2.  The 2013 Docket, ET Docket No. 03-137, on revising the RF/MW radiation Maximum Permissible Exposure (MPE) limits is still open!  And although technically public comment was closed years ago, according to the same FCC employee, Comments are still “trickling in” and do get filed.  He was not able to speak to what is holding up a ruling on this docket.

Further Notice of Proposed Rulemaking (FNPRM) in ET Docket No. 03-137 http://transition.fcc.gov/Daily_Releases/Daily_Business/2013/db0422/FCC-13-39A1.pdf
This is a 200 page document, but presumably, the gist of it is, “The Inquiry is intended to open discussion on both the currency of our RF exposure limits and possible policy approaches regarding RF exposure. We look forward to developing a complete record to determine whether the current rules and policies should remain unchanged, or should be relaxed or tightened.”  

For a short summary of ET Docket No. 03-137, check out this link – http://www.arrl.org/news/fcc-seeks-to-reassess-rf-exposure-limits

 

Instructions for submitting comments to the FCC:

https://www.fcc.gov/consumers/guides/how-comment#comments


3.  The FCC is currently forming a Broadband Deployment Advisory Committee (BDAC):

“On January 31, 2017, FCC Chairman Ajit Pai announced the formation of a new federal advisory committee, the Broadband Deployment Advisory Committee (BDAC or Committee), which will provide advice and recommendations for the Commission on how to accelerate the deployment of high-speed Internet access. The Commission intends to establish the BDAC for a period of two (2) years, with an expected starting date during the spring of 2017. [The first meeting was April 21st, 2017.]
According to the FCC:
“The BDAC’s mission will be to make recommendations for the Commission on how to accelerate the deployment of high-speed Internet access, or ‘broadband,’ by reducing and/or removing regulatory barriers to infrastructure investment. This Committee is intended to provide an effective means for stakeholders with interests in this area to exchange ideas and develop recommendations for the Commission, which will in turn enhance the Commission’s ability to carry out its statutory responsibility to encourage broadband deployment to all Americans.”

There will be five working groups in BDAC: 

1. Model Code for Municipalities
2. Model Code for States
3. Competitive Access to Broadband Infrastructure
4. Removing State and Local Regulatory Barriers
5.  Streamlining Federal Siting

Health and environmental issues will not be addressed in any of these groups.



Letter to the FCC: 

Not quite clear on how the FCC actions described above fit together, I sent the following letter to two officials who work in the Wireless Broadband Deployment devision at the FCC, and followed up with a call to both of them.  I am still awaiting a response…and not holding my breath.  


Dear Mr. Mantiply and Mr. Doczkat: 

By way of introduction, I have no official title except for fellow human being seeking honest answers for myself, my children, my grandchildren, humanity, wildlife, and our Earth.  

I have 3 questions that perhaps you can answer or, if not, direct me to the right person for answers:  

1.  Is the 2013 ET Docket No. 03-137 on Maximum Permissible Exposure limits (MPE) of radio frequency/microwave radiation still open?  And if so, can the public submit comments or reply comments on it?  And will our comments be added to the official file? [ Although another FCC employee had told me this docket was still accepting comments, i wanted confirmation before writing this post.] 

2.  What is holding this up?  It has now been four years since this long awaited and overdue Docket was finally opened, and the public is still awaiting protection while the wireless industry is bull-dozing ahead full speed with 5g “small cell” deployment. 

3. On the FCC website, I found this statement about ET Docket No. O3-137: “The Inquiry is intended to open discussion on both the currency of our RF exposure limits and possible policy approaches regarding RF exposure. We look forward to developing a complete record to determine whether the current rules and policies should remain unchanged, or should be relaxed or tightened.” 

And yet there is another Docket that was opened on 4/20/2017 – Notice of Proposed Rulemaking and Notice of Inquiry WT Docket Nos. 17-79 and 15-180 aka “Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure” – that is seeking comment on what the FCC should do to accelerate the deployment of 5g infrastructure.  

How can the FCC consider or enact changes that would impede local communities from protecting themselves from the RF/MW radiation coming off of cell towers, antennas, and “small cells,” in close proximity to homes, when the Commission has not yet determined an up to date safe exposure limit?  

Thank you for your prompt response.  

Most Sincerely, 

Of note:

 

1.  The National Institute of Science, Law, and Public Policy (NISLAPP) is calling for the FCC to “inform the  American public about the radiation risks of cellphones and wireless transmitting devices and how these risks can be reduced.”

For the full document, Inform the Public of Wireless Tech Risks — 33 Recommendations for the Federal Communications Commission, please click here.

 

2.  A few elected representatives from Montgomery County, MD met with the FCC commissioners and staff to discuss “concerns” that many members of their community have expressed about the “siting of wireless telecommunications antennas and structures, including the health impacts of antennas, and the potential for proliferation of antennas in residential neighborhoods.”  As recounted by County Executive, Isiah Leggett, Montgomery County officials strongly advocated against the potential federal preemption of local zoning rights.  The full report can be found at this link – http://whatis5g.info/wp-content/uploads/2017/05/MoCo-County-Executive-Memo-to-FCC.pdf


Montgomery County will be holding a follow-up community meeting in the Executive Office Building cafeteria (101 Monroe Street in downtown Rockville) at 7PM on Wednesday, June 14th.  The purpose of the community meeting will be to discuss with the public the County’s newly-drafted Zoning Text Amendment (ZTA). The public is encouraged to attend!! (For County Executive Leggett’s discussion of ZTA click here.)

 

3.  Finally, on Thursday, June 8th there will be an “Event” in Washington DC, hosted by the information Technology and Innovation Foundation (ITIF), How Municipalities and Industry Can Collaborate to Spur Broadband Deployment. The ITIF’s stated mission is to “…promote new ways of thinking about technology-driven productivity, competitiveness and globalization,” so this meeting will likely not represent public sentiment in a balanced way.  For more information go to, https://itif.org/events/2017/06/08/how-municipalities-and-industry-can-collaborate-spur-broadband-deployment

 

Speakers:

• Mignon Clyburn, Commissioner, Federal Communications Commission (FCC)
• Robert Atkinson, President, ITIF (moderator)
• Van Bloys, Senior Government Affairs Counsel, Wireless Infrastructure Association
• Joanne Hovis, President, CTC Technology & Energy
• Hans Riemer, At-Large Member, Montgomery County Council

An interesting side note about the ITIF is that every year they choose a recipient for the Luddite Award for the “Year’s Worst Innovation Killer.”  Following is a quote from their 2015 nominee page:
“Neo-Luddites have wide-ranging targets, including everything from genetically modified organisms to new Internet apps, artificial intelligence, and even productivity itself.”  
Proud to be a ITIF Luddite!!