Leah Samuel Gray

By Leah Samuel • April 9, 2019

When San Jose became the lead plaintiff in a lawsuit against the Federal Communications Commission (FCC), the October filing was the culmination of an escalating power struggle over 5G, the much-touted fifth-generation wireless network upgrade.

5G is up to 1,000 times faster than current 4G networks and has greater capacity. That’s because 5G works at speeds of up to 100 gigabits per second. On a 5G network, there’s far less time between the moment information is sent from a device and the moment a receiving device can use the information.

The result would be more and better wireless access for more people, particularly in urban and rural areas that currently lack consistent internet service. Residents could use their mobile device connections in place of cable modems and Wi-Fi, and get nearly instant downloads, among other advantages.

In addition, 5G networks can handle many more devices all at once, eliminating the slowdowns, drops and crashes that can occur when numerous devices connect to 4G’s more limited bandwidth.

This feature makes smart cities another potential benefit of 5G technology. With more connectivity available, local governments could become more efficient and responsive through internet-powered public services.

While the potential of 5G is unprecedented, the fights over it are not. Local governments are facing off against the FCC in the age-old conflict of federal oversight versus local control, and equal access for all versus profitability.

The first issue involves the fifth-generation hardware itself. Setting up 5G means moving away from 4G’s familiar giant cell towers spread miles apart. Instead, 5G systems transmit short-range signals with cells the size of laptops placed every few hundred feet. These are to be attached to existing public structures such as light poles or the sides of government buildings.

Cities and counties had hoped to collect fees for access to those structures, as part of the government contracts awarded to telecom companies. San Jose’s agreement with AT&T, finalized last spring, would have given the company access to utility poles and other public sites to set up 5G cells. AT&T agreed to pay about $5 million in fees and other charges over a period of up to15 years.

But the FCC’s September 2018 order took fee decisions away from local governments. Under the order, the FCC would “identify specific fee levels…that presumably comply with the relevant standard.” And while the order does not offer specific suggestions on fees, it does state that cities can only ask for “amounts that are no greater than a reasonable approximation of their costs.”

City and county officials also complain that the order does not require telecom companies to set up 5G cells in currently underserved urban and rural areas. Some local governments sought to ensure digital equity through their contracts with telecom.

“The order puts innovative agreements like this at risk by capping the amount cities can charge for use of their infrastructure that companies rent to mount this small cell equipment,” explained Shireen Santosham, San Jose’s chief innovation officer.

Cities need the authority to mandate equitable access to 5G technology, said Jeanne Holm, deputy CIO for LA in an Axios interview last year on the digital divide. “We permit new installations and say, if you're permitting for an area like Bel Air or Brentwood, which are quite wealthy,” she said, “then we will also need to see an equitable number of 5G permits in South L.A. and Watts, which are our two most digitally impoverished neighborhoods." The average household income in Bel Air and Brentwood is $87,000 and $97,000, respectively, according to U.S. census data. In the area covering South Los Angeles and Watts the average is $34,000 to $54,000.

Moreover, local officials don’t expect federal oversight to correct digital inequality, given the industry’s previous failure to prevent it when 4G came along. While the Communications Act of 1934 mandated telephone companies to provide universal service, broadband service providers had no such federal mandate. As a result, the companies could cherry pick areas of investment, building out infrastructure in areas with high potential subscriber bases without a mandate to provide access to all communities.

“This leaves schools and cities scrambling to find public resources to enable students to simply complete their homework online," wrote San Jose Mayor Sam Liccardo who, along with New York’s chief technology officer Miguel Gamiño, resigned from the Broadband Deployment Advisory Committee, established in 2017 by FCC chairman Ajit Pai. The resignations followed complaints that the telecom industry was overrepresented on the committee.

FCC chairman Pai defends the order, saying that it will speed up implementation of 5G by streamlining right-of-way permits and other processes. Industry calls the local fees desired by the plaintiffs “extortion.”

The U.S. Conference of Mayors is supporting the suit against the FCC as the list of plaintiff governments — including Portland, Los Angeles and Seattle — continues to grow.

According to the FCC order, industry needs certain and reasonable local fee and permitting processes as a condition of investment.

Residents, particularly those in digitally underserved communities, stand to gain improved educational access, employment opportunities and health outcomes, according to a Brookings Institution report released in January.

Local government has to find a way to meet the needs of both industry and communities while bringing in much-needed revenue, said Santosham, pointing to her city’s 5G plan. “San Jose has an innovative policy to close the digital divide in the city through the Digital Inclusion Fund, while attracting $500M in investment into broadband networks,” she said.

With a victory in court, Santosham added, San Jose can focus on meeting all three goals — access for all residents in all areas, revenue for local governments, and profitability for 5G providers.

“It’s a win for business and for the community,” said Santosham.