A bit of background

The deployment of the new 5G network presents a unique challenge to our regulatory system.  Far from the 100-foot lattice towers and monopoles of 3G and 4G past, 5G capability will largely be the task of small cell deployments in the public streets, with antennas often no larger than a backpack.  Yet, while 5G utilizes a smaller form factor than its predecessors, it remains bound by the same rules and regulations at the federal, state, and local level.  Unsurprisingly, this newer, more nimble, generation of technology faces significant barriers, largely in the form of delays in permit processing, excessive permit fees, and burdensome local ordinances.

To those in the industry, the story is all too familiar.  Congress enacted the Telecommunications Act of 1996 (known colloquially as the Telecom Act) to deregulate telecommunications, open the market to competition and foster the rapid deployment of new communications technologies.  Among other things Congress sought to preclude local governmental actions that could lead to a “prohibition of [telecommunications]service,” (sections 253 and 332(c)(7)) and ordered local governments to act on permits to install telecommunications equipment within a “reasonable period of time” (section 332(c)(7)). But the breakneck pace of the evolution of communications technologies has far exceeded what any lawmaker could have envisioned in 1996.

Even in its fledgling years, Justice Antonin Scalia observed that ”it would be gross understatement to say that the 1996 act is not a model of clarity.”  In light of the almost existential changes in telecommunications that have occurred since then, much of the language of the Telecom Act now seems to border on Delphic.  It has been up to the courts divine precisely what Congress meant when it used such abstruse phases as “prohibition of service” or “reasonable period of time,” and even with the mandate to the Judicial Branch to hear cases on an expedited basis, the wheels of litigation grind too slowly to keep pace with technology.