| Popis: |
Behind the glitzy façade of announcements about the deployment of 5G wireless telecommunication networks by major carriers lies a difficult issue of infrastructure siting and the allocation of property rights between the municipal holders of rights-of-way or private building owners one the one hand, and the telecoms on the other. The current state of telecom infrastructure development is a result of years of tensions between these actors, mostly over Section 253 of the Telecommunications Act that mandates the removal of prohibitions on the ability to provide interstate or intrastate telecommunications service yet preserves State and local government police powers and their authority over fair and reasonable compensation for use of public rights- of-way. The interpretation of this provision has long been a cause of a split between several U.S. circuit courts but has not provoked a ruling by the U.S. Supreme Court or the F.C.C. despite stakeholders’ repeated attempts, most recently before the F.C.C. Unlike existing infrastructure, 5G networks are designed as a dense mesh of microcells, that require a hundredfold of nodes as compared to the current large-cell system. This naturally puts pressure on municipal or private land necessary to support additional or upgraded infrastructure, particularly in urban areas, where the available streets, light poles, and traffic control poles serve a dual function. The problem may be analyzed from both a commons and an anticommons perspective. On the one hand, the scarcity of municipal rights-of-way coupled with the necessity (by design) of dense small-cell placement creates a commons-type situation of overuse. On the other hand, the regulatory schemes, particularly those relating to health, safety, urban planning, historic preservation, and tribal interests, create an anticommons-type situation of underuse, due to lengthy proceedings, and holdouts. Most recently, the F.C.C. has issued a notice of proposed rulemaking seeking to address concerns relating to streamlining state and local review, as well as NHPA and NEPA review. This paper traces the development of different analytic schemes underlying the complex relationships, applying the celebrated commons scholarship from Hardin, to Heller, to Ostrom. First, it looks at the causes of the current situation, particularly the relationship between the goals of telecommunications liberalization and the advances in technology leading up to 5G deployment. Second, it looks at how different legal doctrines applied in cases and discussed in the literature, particularly those dealing with the local government’s regulatory, as opposed to proprietary, actions, relate to the availability of governance strategies for siting areas taken as a commons. Third, the paper looks at the problem comparatively, by taking an insight at the situation in the E.U. The E.U. has a myriad of different schemes throughout different countries which range from free-access to highly exclusionary but only attempts to regulate at the E.U. level facilities installation fees and administrative charges. It has, however, remained reluctant to address issues pertinent to the anticommons currently addressed by the F.C.C.’s proposal. The paper looks at the reasons behind such policy. |
