Telecom Industry, Localities Clash Over COVID-19 Hurdles

By Kelcee Griffis
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Law360 (April 6, 2020, 4:11 PM EDT) -- Telecom companies, work crews and localities are facing a host of unprecedented hurdles to keeping communications networks running amid the coronavirus pandemic, sometimes leading to uncomfortable clashes between industry and local governments.

The wireless industry says it's struggling to secure some work permits while local governments are trying to transition to all-online systems. But advocates for localities assert that industry is using the pandemic to advocate for broader federal deregulation that would trump some local infrastructure rules.

"Everyone on the municipal side is going, 'What in the world are they talking about?'" said Joseph Van Eaton, a partner at Best Best & Krieger LLP who represents local governments in infrastructure matters. "As usual, instead of working with [localities, industry is] going to the FCC with a problem that could be solved, if it exists, informally."

In a March 26 phone call with FCC Commissioner Brendan Carr, representatives for the Wireless Infrastructure Association outlined difficulties the group's members are facing as workers are required to socially distance and take extra steps to protect themselves against the coronavirus at critical job sites.

The usual channels that carriers use to get permission for infrastructure projects — often necessary to maintain and expand network coverage and capacity — have in some cases been short-circuited by governments that either don't accept documents online or that are cutting back on the number of permits they'll review, according to WIA.

"Disruption to normal permitting processes is starting to impact the construction of new towers and upgrading existing equipment, which is essential to meeting increasing consumer demand, and it is also critical to ensuring public safety communications during this emergency," the group wrote in an ex parte filing that outlined the phone call.

For example, Boston halted all construction projects and Atlanta suspended the submission of all new permitting plans, the group said. During the same conversation, WIA brought up a set of petitions filed last fall that ask the FCC to formally address what industry sees as barriers to expanding mobile networks, such as getting faster green lights for projects and heading off delays by localities.

Localities have characterized these requests as a power grab by carriers that seek fewer restraints as they beef up their networks to carry the souped-up wireless service known as 5G. That hasn't changed amid the pandemic, Van Eaton said.

"They're whining to regulators instead of the people they're complaining about," he said. "Hopefully at some point, they will realize that local governments are trying to solve problems, but it doesn't help to make them come to Washington to work them out."

According to Van Eaton, it's unfair for wireless carriers to use the pandemic to push for rules the industry has long requested, instead of talking about the specific areas where they're experiencing red tape and hammering out a lower-level solution.

So far in Florida, which implemented a statewide stay-at-home order Friday, it's been business as usual despite a few minor delays, said Gary Resnick, a Fort Lauderdale-based attorney with GrayRobinson PA.

He noted that localities are having to adjust to life under lockdown, and in some cases, this means bending or reinterpreting rules that require in-person interactions. "That's the one thing that frustrates local governments," Resnick said.

"There's been no issues with denial to sites, denial of access or anything like that," Resnick added. "The [jurisdictions] that have to do in-person reviews of permit applications may be slower or may have challenges. But it's still going on."

The telecom industry cleared one major access hurdle March 28 when the U.S. Department of Homeland Security expanded its definition of telecom workers considered essential employees, which now includes customer service and infrastructure workers. While this guidance is a helpful benchmark, it's non-binding and still leaves a lot of wiggle room for interpretation from city to city, according to Hogan Lovells partner Trey Hanbury.

"You [still] have to make the policy case, and that's where we are," he said, noting that the telecom industry is likely to encounter "a million different flavors and interpretations" of the guidance for workers.

Still, WIA President Jonathan Adelstein said local governments must find a way to prioritize communications permits and work orders ahead of stalled new residential construction and other more general projects during a time Americans are relying on the internet as never before.

"Our entire network has become a public health priority at a time when people are locked down, so we can't be placed in the same bucket as a luxury apartment building," he said. "Right now, telecommunications permits need to be prioritized. I think we're seeing increasing recognition of that, but people are still adjusting to this crisis."

--Editing by Kelly Duncan.

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