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Overview of Legal Challenges to the FCC's 5G
Order on Small Cell Siting
February 25, 2019
On September 26, 2018, the Federal Communications Commission (FCC) adopted a Declaratory Ruling
and Third Report and Order, titled Accelerating Wireless Broadband Deployment by Removing Barriers
to Infrastructure Investment (the Order). In the Order, the FCC clarified when the Telecommunications
Act of 1996 (P.L. 104-104) preempts state and local requirements related to the deployment of fifth-
generation (5G) wireless infrastructure. It also set time frames (or shot clocks) for localities to review
5G infrastructure applications. As described in a press release, the FCC issued the Order in order to
remove regulatory barriers that inhibit the deployment of infrastructure necessary for 5G and other
advanced wireless services. Some cities, however, have criticized the Order as federal overreach. For
instance, the CEO and Executive Director of the U.S. Conference of Mayors stated that the Order
misapplies federal law to federalize local public property and needlessly introduce [s] increased risk of
right-of-way and other public safety hazards. On the other hand, several mobile service providers have
maintained that the FCC did not go far enough, arguing that the Order should have included a deemed
granted provision automatically approving applications after the shot clocks expire. A number of
localities and mobile service providers have acted on these views by filing petitions challenging the Order
in various federal appellate courts. Although the Order went into effect on January 14, 2019, these
challenges remain ongoing and have been consolidated in the Ninth Circuit Court of Appeals.
This Sidebar begins by providing a brief overview of 5G networks. It then reviews the substance of the
Order, discusses the legal challenges to the Order, and, finally, offers considerations for Congress
concerning the ongoing litigation.
5G Networks
5G networks are the latest generation of mobile phone technologies. Mobile service providers are
currently in the process of deploying 5G networks throughout the country, and some providers have
already launched 5G services in certain cities. Once fully implemented, 5G will offer increased bandwidth
and faster speeds than previous generations of mobile phone technologies. In part, this increased speed
and capacity will be achieved through improvements to 4G networks and by using higher radio
frequencies (frequencies in the 30 to 300 gigahertz range), which have not been used for mobile radio
communications previously.
Congressional Research Service
https://crsreports.congress.gov
LSB10265
CRS Legal Sidebar
Prepared for Members and
Committees of Congress](ViewImageLocal?handle=hein.crs/govzbu0001&div=1&collection=&method=preview&ext=.png&size=3)