Questions and criticism follow 5G rule

10/04/2018

Activists are concerned that a deal struck by the Marin General Services Authority more than a year ago may have cut off county bargaining power with telecommunication companies ahead of a new federal rule limiting local control of 5G cell networks.

Those networks, which are designed to provide high-speed internet at least 10 times faster than 4G, require the placement of small-cell antennas throughout city infrastructure, attached to fixtures like streetlights and utility poles. Because the nodes have a limited range and don’t travel easily through physical barriers, it takes many to provide service to a relatively small area. 

In July 2017, the Marin General Services Authority, a body created by the cities, towns and county of Marin to oversee certain municipal services, approved agreements with Mobilitie and Verizon to allow the companies access to install 5G small-cell nodes on the streetlights it owns. 

Although the contracts do not pave the way for 5G construction—the companies must still get approval from the county and cities for permits and planning—some worry they could weaken Marin’s bargaining power at a time when the federal government has strengthened the hand of telecom companies. 

“The fact that [the agreements] were executed before consulting with the cities is the problem, because the cities would be in more of a position to realize the implications of this,” said Mary Beth Brangan, a Bolinas resident and co-director of Marin’s Ecological Options Network. “It’s like a series of green lights, and that was the first one, building on the F.C.C.’s draconian moves.”

Last Wednesday, the Federal Communications Commission approved a new rule that both limits the amount local authorities can charge companies for installing 5G equipment and establishes a 60-day window for approving applications to attach nodes to existing structures and a 90-window for new builds. 

In the past, the F.C.C. has argued that allowing cities to set their own fees for installing the nodes on city property has made the cost of 5G deployment prohibitively expensive. The new rule caps processing fees at $500 and annual rights-of-way fees at $270. If cities want to charge more, they must show that maintenance and other costs would justify the higher price. 

In its agreement, the services authority mandated a $500 processing fee and a $1,000 annual fee per pole. Michael S. Frank, the authority’s executive director, said he did not yet know how Marin’s agreement will be affected by the new rule.

A host of other existing F.C.C. regulations also limit local control, including laws that prevent municipalities from discriminating against different kinds of technology and from blocking telecom companies because of health concerns. 

Activists argue that with public and municipal input, community-specific provisions could have been worked into the authority’s deals before the new ruling came out. 

San Anselmo resident Bruce Vogen pointed to San Jose, which struck a deal with AT&T to give the city $1 million to help accelerate network deployment. Through that, Mr. Vogen said, San Jose “could gain control over insight to networks. Marin could have done the very same thing, a modest version of that.” 

As part of its deal with AT&T, San Jose also required deployment in underserved areas. Mr. Vogen said that since Marin has no such deal, low-income areas in the county—like the Canal—may not receive service. 

Mr. Frank, the authority’s executive director, said that all of the agency’s meetings are publicly held and that versions of the agreements were sent to Marin’s city managers.

“Our agreement does not preclude any jurisdiction, whether it be the county or city, from creating whatever it can legally create at the local level,” he went on. “Our job is to say locally, you guys do whatever you want [to ensure] our asset, which is the streetlight, isn’t going to fall over. The politics—what it looks like, whether the community wants it or not—has nothing to do with us and everything to do with elected officials and the local agency. I think that some of the activists may perceive that the M.G.S.A. could have been more Big Brother and said, ‘No one’s allowed to come into Marin,’ but that’s not the agency we are. We don’t engage in policy.” 

Other activists have questioned why the Marin Telecommunications Agency, which was created in 1998 to administer cable franchises and develop telecommunications policy, was not involved in the deal. But the executive officer of that agency, Jean Bonander, said the deployment of 5G is not in the group’s purview. “Our primary function is to manage franchise fees and broadband and regulatory issues—the MTA has no control over 5G installation,” she said. 

According to Mr. Vogen, however, the agency has selectively chosen to weigh in on cell networks in the past. “It would be inconsistent for them to not weigh in [on 5G],” he said. “They knew [the M.G.S.A. deal] was happening in the fall of 2016 and nobody bothered to get out ahead of it and do some planning.” 

As a result, Mr. Vogen said, the county is now “responding to F.C.C. shot clocks with [its] back against the wall. If you actually had a telecommunications agency in the county operating within the bounds of their regulatory authority, which always had their ear to the ground regarding the providers, they would have seen 5G coming.”

Supervisor Dennis Rodoni says he is worried about the F.C.C.’s new ruling in part because Marin’s coastal restrictions will make such a tight turnaround for 5G applications difficult.

Though he said it would have been nice if the authority had consulted the board, he noted the agreements stipulate that telecom companies still need to get local approval. He said he was not unduly concerned that the agreements have closed the door on negotiating deals. 

“When an applicant comes in, we can ask, ‘Where else can you plan to do this?’ [or] ‘Give us a master plan,’” he said. “I think that opportunity will still exist, and is something we’re certainly interested in. We need to work on our process to make sure our telecom process reflects what we want as a community and county.” 

Cities and states around the country have already enacted laws around 5G that are specific to their communities. But it’s unclear if the new F.C.C. rule will allow exemptions for existing local agreements. 

“It’s a very broad-brush effort on the part of the F.C.C. to slap a one-size-fits-all set of regulations and pre-emptions on every local government in the nation,” Ms. Bonander said. “This is going to be a long, contentious process to determine whether these regulations are in fact legal.” 

San Anselmo, Ross, Mill Valley and Petaluma have adopted ordinances aimed at regulating small cell towers. In Mill Valley, an ordinance approved in September restricts wireless telecommunications facilities in residential zones, and requires annual readings by the EMF Safety Network, an advocacy group.

The insistence has come in large part from advocates concerned about health risks resulting from exposure to electromagnetic fields. Scientific consensus on the risks is inconclusive: Though the Centers for Disease Control has said it is unclear whether EMF exposure causes cancer, a 2017 study from Kaiser Permanente found a link between EMF exposure and miscarriage rates. 

But it is unlikely that the health risk argument will hold any sway with the federal government, as the F.F.C. prohibits the restriction of technological deployment made purely for health reasons as long as a wireless carrier meets current EMF standards. 

In Bolinas, AT&T is hoping to modify a lease with the Bolinas Fire Protection District established in 1997 to expand capacity. The current lease restricts radio frequency levels to 3 percent of the F.C.C. limit, and AT&T wants to increase levels to 18.4 percent of the limit. 

Fire Chief Anita Tyrrell-Brown noted in July that although many residents believe the F.C.C. limit is too high, “they’re not in a position to challenge that because, in past court cases, no one has really been successful against these large companies.”

Tom Lai, deputy director of the Community Development Agency, said that because “the F.C.C. prohibits discrimination between carriers and discrimination between technologies,” cities trying to exclude 5G in favor of a 4G network could run into trouble.  

At the Sept. 18 Board of Supervisors meeting, residents asked the county to consider enacting an emergency ordinance to restrict 5G implementation ahead of the F.C.C. ruling. When asked if the board had looked at such an option, Supervisor Rodoni said, “We considered that, but our advice was you can’t pre-empt the federal rules, even if you look at local rule changes like in Mill Valley. They have an exemption for state or federal rules. The point being it’s pretty hard to pre-empt a federal rule coming from the F.C.C. Even though you think you could, it’s an overriding rule.” 

Local rules cannot stop the tide, but the hope is that they can direct the flow of deployment in a way that municipalities and the public find more palatable. 

Supervisor Rodoni said the board is looking at how it could update Marin’s telecommunications policy, but has not fully evaluated its options. Asked if the county was thinking of joining any of the lawsuits being brought against the F.C.C., Supervisor Rodoni said it was a potential step. 

“All you’re trying to do is look for leverage against these big companies who have the resources to do whatever they want,” Mr. Vogen said. “You are only stemming the tide, but at least you’re making the best of the worst situation.” 

For his part, Mr. Vogen said the county “should take a look at creating a true telecommunications department or agency where you have professionals who know how to fight these battles, who could then provide information to towns and cities. You would create a centralized authority reporting to the Board of Supervisors. At this point in time, I would form a citizens advisory committee of some kind, and the more technical they are the better, so that the public has access to the conversation in a way that it hasn’t for the last 18 months.” 

It is unclear how quickly 5G will come to unincorporated Marin, and so far neither Verizon nor Mobilitie has filed an application to install 5G nodes on any of the services authority’s streetlights. 

“From what I have researched, I think it’s the very urban areas that carriers would target because of the density of the population,” said Mr. Lai, who suggested that broadband might be a more viable alternative in West Marin. “Rural areas, I think, are going to be at the low end of their priorities because there’s not enough of a resident population there to support investment in that infrastructure.” 

But that is cold comfort to Marin residents concerned about the new network’s rollout. “I’m hoping that it truly is too expensive for them to come out in West Marin, but I’m not just concerned about West Marin,” Ms. Brangan said. “I go to East Marin a lot, and I have a lot of friends over there. I’m horrified for populations in denser population areas.”