FCC Proposes to Prohibit Restrictions on Deployment of Some 5G Fixed Wireless Antennas
In April 2019, the Federal Communications Commission (“FCC”) unanimously adopted a Notice of Proposed Rulemaking to amend its over-the-air-reception devices (“OTARD”) rule in order to facilitate the deployment of 5G fixed wireless networks.
The FCC’s existing OTARD rule prohibits laws, regulations or restrictions imposed by state or local governments or private entities that impair the ability of antenna users to install, maintain or use over-the-air reception devices.1 The rule broadly defines such prohibited laws and restrictions to include any zoning, land-use or building regulations, or any private covenant, contract provision, lease provision, homeowners’ association rule or similar restriction.2 The current rule, however, has two significant limitations:
- The antenna must be one meter or less in diameter or diagonal measurement; and
- The antenna must be located on the customer’s property and be used and controlled exclusively for that customer and other fixed wireless customers (e., the customer antennas can function as nodes in a wireless mesh network). Due to the latter limitation, the current OTARD rule does not apply to hub or relay antennas of network operators which transmit signals to and/or receive signals from multiple customer locations.
The FCC’s Notice of Proposed Rulemaking tentatively supports an industry proposal to expand the scope of the OTARD rule to apply to all fixed wireless transmitters and receivers, regardless of whether the equipment is used for reception, transmission, or both, so long as the equipment meets the existing OTARD antenna size restriction. The FCC noted that current wireless infrastructure has “shifted toward the development of 5G networks and technologies that require dense deployment of smaller antennas across provider networks in locations closer to customers.” Thus, it found that “revising the OTARD framework would allow fixed wireless providers to deploy hub and relay antennas more quickly and efficiently and would help spur investment in and deployment of needed infrastructure ….” While the FCC tentatively concluded that it would not modify the current OTARD antenna size restriction, it sought comment on whether this restriction should be modified for OTARD antennas in rural or underserved areas.
Comments on the Notice of Proposed Rulemaking must be filed with the FCC by June 3, 2019, and reply comments must be filed by June 17, 2019.
For additional information regarding the FCC’s Notice of Proposed Rulemaking or other matters regarding telecommunications law, please contact Douglas W. Dimitroff at (716) 847-5408, firstname.lastname@example.org; David E. Bronston at (212) 508-0470, email@example.com; or Mark J. O’Connor at (202) 617-2732, mo’firstname.lastname@example.org.
- While there are certain narrow exceptions to the OTARD prohibition for safety and historic preservation restrictions, the burden is on the state or local government or the property owner to prove the restriction falls within an exception, is nondiscriminatory and is not more burdensome than necessary.
- The current OTARD rule also provides that “[a]ny fee or cost imposed on a user by a rule, law, regulation or restriction must be reasonable in light of the cost of the equipment or services and the rule, law, regulation or restriction’s treatment of comparable devices.” The text of the Notice of Proposed Rulemaking does not expressly address whether, if the proposed rules were adopted, these fee and cost restrictions would apply to a wireless operator’s OTARD network antennas.