FIXING THE GLITCH: THE SMART ROLLOUT OF 5G SMALL CELL WIRELESS NETWORKS BALANCING PRIVATE AND PUBLIC INTERESTS.

• Author: Bradley, Michael R.

1. INTRODUCTION 485 II. CONSUMER DEMAND AND THE DEVELOPMENT OF 5G TECHNOLOGY 485 A. Growing Consumer Demand for Robust Wireless Internet Service 485 B. The Wireless Industry's Response to Consumer Demand- 5G 486 C. 5G Dependence on Infrastructure in the Public Rights-of- Way 487 III. CURRENT FEDERAL REGULATORY LANDSCAPE 488 A. Communications Act of 1934 488 B. Telecommunications Act of 199 489 C. Middle Class tax Relief and Job Creation Act of 2012 492 D. FCC Interpretation of the 1996 Act for Small Wireless Facilities: The Glitch 493 1. Universal Definition of a Small Wireless Facility 494 2. Fee Limitations 494 3. New Application Review Periods for Small Wireless Facilities 495 4. Limitations on Local Government's Aesthetic Requirements 496 5. State and Local Governments Only Act Within Their Regulatory Capacity 496 IV. SURVEY OF RECENT SMALL WIRELESS FACILITY STATE LEGISLATION 497 A. SUMMARY OF MINNESOTA SMALL CELL LEGISLATIO 497 1. Fee Limitations 497 2. Limitations on Local Government A uthority 499 a. Micro Wireless Facilities 499 b. Preexisting Agreements 499 c. Single-Family Residential Zoning and Historic Districts 499 d. Limitation of Authority Over Placement of Small Wireless Facilities 500 e. Size of Small Cell Facilities Allowed on Public Pole 500 3. Permit Applications and Procedures 500 4. Small Wireless collocation Agreement 501 V. FIXING THE GLITCH: THE SMART ROLLOUT OF 5G 502 A. Wireless Service and Infrastructure Provider Interests 502 B. State Interests 503 1. 5G Build-out 504 2. Wireless Service A vailability for Low-Income Households 504 3. Privacy and Consumer Protection 504 4. Emergency Networks 505 C. Local government Interests 505 1. Public Health, Safety, and Welfare 506 2. Right of Way Aesthetics 506 3. Rapid Deployment 506 4. Term Limit on Permit 507 5. Micro Wireless Facilities 508 6. Encouraging 5G Deployment 508 7. Expertise and Restricted Use of Professionals 508 VI. CONCLUSION 508 I. INTRODUCTION

   In the movie Wreck-It Ralph, missing bits of code cause the main character to malfunction, or glitch. Similar to the movie, there are missing federal, state, and local laws and regulations that would encourage the smart deployment of next-generation wireless services. The actions of the Federal Communications Commission (herein "the FCC") and state legislatures have created glitches that are contrary to the purpose of the entire body of telecommunications law. (1) Namely, these glitches fail to ensure that suburban and rural areas receive next-generation wireless services, fail to implement coherent public rights-of-way management policies, and fail to protect wireless service subscribers.

   Unlike previous generations of wireless service, the fifth generation of cellular wireless service, 5G will heavily depend on obtaining use of municipally-owned infrastructures, such as light poles and traffic signals, in the public rights-of-way. This increased need for municipal assets has led to significant competitive pressures on wireless service and infrastructure providers and has resulted in substantial legislative reform at the federal and state levels. Much of this reform has preempted state and local government authority in an effort to allow small wireless facilities to be more rapidly deployed. As a result, local governments have a steep learning curve in ascertaining what 5G technologies and services mean to their citizens and the impact of small wireless facilities on the public rights-of-way.

   This article examines the consumer desire for increased wireless connection speeds and bandwidth, describes the wireless industry's response to this need through 5G technology, reviews the current regulatory landscape, identifies glitches in telecommunications law created by the FCC and state legislatures, and proposes how these glitches can be resolved.

2. CONSUMER DEMAND AND THE DEVELOPMENT OF 5G

   TECHNOLOGY

   1. GROWING CONSUMER DEMAND FOR ROBUST WIRELESS INTERNET SERVICE

      The development of 5G wireless technology stems from a rapidly growing consumer appetite for high-speed mobile internet connections. Everyday tasks, ranging from socialization (e.g., Facebook) to business operations (e.g., financial management) are increasingly becoming internet-connected activities. (2) Perhaps more importantly, though, economic opportunity has become more synonymous with access to a fast, reliable internet connection (i.e., digital inclusion). (3) Said another way, network infrastructure itself is increasingly becoming economic infrastructure. With this increasingly greater dependence on internet-connected applications as economic infrastructure, it is estimated that 278,108 petabytes (4) of data will be globally transferred each month by 2021. (5) It is further estimated that roughly 17% of that data (48,270 petabytes) will be transferred using a mobile internet connection (e.g., a 4G wireless network). (6) It is expected that between 2017 and 2021, the amount of data transferred using mobile internet connections will increase at a rate faster than any other type of network connection. (7)

      While end users are expected to increasingly utilize mobile internet connections, it is not thought that present domestic wireless infrastructure is capable of supporting these anticipated data volumes primarily due to bandwidth limitations. (8) Accordingly, a more robust wireless infrastructure will be needed. (9)

   2. THE WIRELESS INDUSTRY'S RESPONSE TO CONSUMER DEMAND--5G

      To meet these and other consumer needs, wireless service and infrastructure providers are developing fifth-generation mobile networks (herein "5G network"). (10) Compared to current fourth-generation mobile networks (herein "4G network") (e.g., LTE-Advanced), 5G networks are expected to provide a roughly twenty-two-fold increase in capacity (i.e., spectral efficiency).'' By increasing capacity, it is expected that wireless service providers will be better able to provide wireless service to a high number of devices within a dense geography (e.g., concert venue, public transportation station, office building) while also providing more consistent, reliable wireless connections for consumers. (12) It is thought by some that this increase in capacity will allow wireless services to compete with wireline services, potentially creating new revenue streams for wireless service and infrastructure providers. It is estimated that these new revenue streams could generate as much as $247 billion per year in global revenue. (13)

      This increase in capacity is also expected to enable new technologies, such as autonomous driving, remote surgery, smart cities, connected health applications, smart farming applications, and smart electrical grids. (14)

      To provide these and other benefits, it is expected that 5G networks will make extensive use of small cell networks. (15) A small cell network is a group of shorter-range radio access nodes (i.e., a small wireless facility). (16) Each small wireless facility comprises an antenna, power source, and data connection. Small wireless facilities are preferred for operating 5G networks because the radio frequencies utilized by 5G networks have a much lower transmission range than traditional macrocell towers. (17) Whereas current 4G networks are serviced by a low number of high-powered antennas (i.e., macrocells), 5G networks are expected to be serviced by a high number of low-powered antennas (i.e., small wireless facilities). (18)

   3. 5G DEPENDENCE ON INFRASTRUCTURE IN THE PUBLIC RIGHTS-OF-WAY

      Constructing modern wireless networks already relies on municipal assets to provide a collocating site for an antenna (e.g., a utility pole), power, and data resources. Because a greater number of antennas will be needed to provide 5G service, a greater number of collocation sites will be needed. Collocating small wireless facilities on municipal assets, such as utility poles, and utilizing preexisting power and data resources in the public rights-of-way will be key to developing 5G networks. (19) Accordingly, when compared to constructing 4G networks, wireless service and infrastructure providers will more heavily depend on obtaining use of municipal assets in the public rights-of-way when constructing 5G networks. (20) Despite being limited to acting only in their regulatory capacities, municipalities are expected to have a large role in the construction of 5G networks. (21)

3. CURRENT FEDERAL REGULATORY LANDSCAPE

   Throughout the United States' history, the federal government has employed various regulatory schemes to regulate telecommunications providers' behavior. (22) At a fundamental level, each of these regulatory schemes has sought to proliferate cost-effective telecommunications access to the greatest number of consumers possible (e.g., to rapidly and widely proliferate access to communications networks). (23) Whereas state and local governments primarily regulate state and local issues related to the construction of network infrastructure, the federal government primarily regulates macro market behavior. (24) In this way, the federal government is able to prevent harmful monopolistic behavior while state and local governments are able to identify hyperlocal issues relating to infrastructure development.

   1. COMMUNICATIONS ACT OF 1934

      In 1934, Congress passed the Communications Act of 1934 (herein "the 1934 Act"). With passage of the 1934 Act, Congress sought to regulate the existing telecommunications industry through economic regulation and established the FCC to enforce these regulations. (25) In an economic regulation model, a market's competitive nature is controlled by statutory pricing schemes. (26) Conversely, in a competition regulation model, a market's competitive nature is controlled through regulation of the behavior of market participants (e.g., limiting consolidation of market power). (27) At the time of the 1934 Act's passage, Congress' rationale for utilizing an economic regulation model was that a natural...