HOPLITE BULLETIN on 5G Small Cells in the Public Right of Way: Potential Impact of Upcoming Supreme Court Ruling on Chevron Deference for New Jersey Municipalities

We are writing to inform our readers of significant legal developments that may impact municipalities across New Jersey and which may help restore local zoning oversight lost to municipalities on 5G small cell sites from recent FCC rulings and a potential to increase monetization opportunities for towns.

In Loper Bright Enterprises v. Raimondo, the United States Supreme Court is currently reviewing the principle of Chevron deference, a legal doctrine that has long allowed federal agencies like the Federal Communications Commission (FCC) to interpret ambiguous statutory provisions, often to the chagrin of many different categories of industries across the country.

Understanding Chevron Deference

Established in 1984, Chevron deference has enabled courts to defer to federal agencies' expertise when interpreting unclear laws, provided the agency's interpretation is reasonable. This doctrine has been instrumental in shaping regulatory frameworks and ensuring consistent enforcement of federal laws.

Potential Implications for FCC Rulings

A conservative Supreme Court ruling limiting or overturning Chevron deference could have profound effects on the FCC’s authority, particularly concerning recent decisions affecting local governments. Notably, this includes the FCC opinion known as Carr’s ruling, which involves:

1. Safe Harbor Rents: Standardized rates that municipalities can charge telecommunications companies for placing equipment on public property.

2. Local Municipal Preemption: FCC measures that limit local regulatory authority over telecommunications infrastructure.

Increased Judicial Scrutiny

If Chevron deference is restricted, FCC rulings like Carr’s could face heightened judicial scrutiny. Courts may no longer defer to the FCC's interpretations, leading to more rigorous challenges by municipalities and other stakeholders.

Increased judicial scrutiny may also present an opening to revise existing ordinances in order to assert more control over placement of 5G small cells in the public right of way and to increase the rates currently set by the FCC’s safe harbor per-pole fees to something that more closely resembles fair market value. 

Potential Outcomes for New Jersey Municipalities

1. More Frequent and Impactful Litigation: Municipalities may be more successful in contesting FCC-imposed rates and preemption of local authority. This could result in increased legal actions and potential delays in infrastructure deployment.

2. Regulatory Uncertainty: The potential for more frequent and successful legal challenges could create uncertainty around the implementation of FCC regulations. Municipalities may need to prepare for prolonged disputes and adapt to evolving legal standards.

3. Legislative Intervention: Congress may need to provide clearer statutory guidance, which could either reinforce or revise the current regulatory framework affecting municipalities.

Advisory

Hoplite will continue to monitor any decisions issued by the Supreme Court on the Chevron deference doctrine for our municipal clients and consider its potential impacts on local regulatory practices and infrastructure projects.

It is prudent to prepare for possible shifts in the legal landscape and to assess current Right of Way Use Agreements and Ordinances that might be affected by the forthcoming SCOTUS decision. 

Like It Or Not, Small Cells May Be a Green Solution to Wireless Networks

A recent study led by researchers at the University of California concluded that deploying more small cell sites, instead of relying on a few large ones, could reduce energy consumption for mobile networks by up to two-thirds.

If this holds up, it would be a huge check in the small cell column over macro towers and rooftops.

Greater utilization of small cells could also significantly improve the battery life of mobile devices. The findings, published in a paper titled "Densify and Conquer," highlight how smaller, more densely placed towers reduce the last-mile wireless energy waste, which is often due to signal attenuation from absorption, reflection, and scattering of electromagnetic waves when broadcast from larger, more traditional cell towers.

The study's lead, Agrim Gupta, explains that this densification (replacing a single larger base station with multiple smaller ones) tackles key issues that contribute to higher carbon footprints in current network configurations. As the urgency to address environmental impacts intensifies, this strategy could offer a dual benefit: cutting operational costs and enhancing user experience by extending phone battery life.

Despite the potential advantages, a deployment model that increases the number of small cells in the public rights-of-way in populated areas will likely face stiff resistance.

The Long Term Issue of Decommissioning Abandoned Small Cells

And, in all seriousness, some of these concerns are well founded: A forest of small cells will further clutter already heavily occupied streetscape settings across the country. Plus, there is no telling how long this model will remain viable, as new technologies are coming along in the chipset space, the AI space and the wireless transmission space that could make non-terrestrial networks or any other type of configuration the way forward in as little as 10 years.

At least if that happens now, macro sites are relatively finite in how much ground space they occupy and can be decommissioned without major disruption to everyday life for most of us. Whereas, a full on build out of 5G and 6G small cells could result in 100,000s of abandoned utility poles, decorative poles and other designs across the public ways down the line that would then have to be removed or repurposed. This is because public ways are already crowded so it does not serve the public interest to leave large scale abandoned infrastructure in place.

All of these factors, along with those of signal propagation and the limits of technology, should be weighed in regard to future deployment paradigms.

Rollouts Have Been Slow, Thus Far, But the Small Cell Age May Actually Arrive Soon

Industry experts like Roy Chua, principal at AvidThink, note that while network densification has been discussed since the early 2010s, the actual deployment of small cells has been slow. This is partly due to the logistical challenges and public skepticism about having more visible infrastructure. However, with capital expenditures tight and the continued push towards enhancing network capabilities, the adoption of small cells may see more traction in urban settings over the coming years, as they can significantly improve coverage and network density.

Minnesota Resident Cites ADA to Demand Carriers Use Beamforming to Avoid Her Home

(Duluth, Minnesota) Marcia Haller, a resident of Duluth, filed a lawsuit recently in federal court against American Tower Company, AT&T, and T-Mobile, following their non-response to her request for them to lower radiofrequency levels in the vicinity of her home, caused predominantly by carrier antennas broadcasting from a 295 tower situated roughly 1300 feet away.

RF signals from nearby sources have allegedly caused her 51 strokes and other debilitating symptoms due to her electromagnetic sensitivity, with the severity of symptoms greatly accelerating after carriers like T-Mobile upgraded their facilities to 5G technology.

In her complaint, Haller, with legal backing from the Children’s Health Defense's Electromagnetic Radiator & Wireless program, demands that signal mitigation measures be taken, citing provisions in the Americans with Disabilities Act that prohibit discrimination against people with disabilities in the provision of publicly available commercial services.

The suit suggests feasible solutions like reorienting existing antennas or employing newer beamforming technology, while also acknowledging the challenge of complete RF signal containment due to natural and man-made obstructions.

Although it is too early to project the outcome, this complaint appears to suffer from the same weaknesses that have limited the impacts of previous efforts, including RF safety exhibits from ‘experts’ with titles such as “Certified Building Biology Environmental Consultant & Certified ElectroMagnetic Radiation Specialist” from Grateful Dowsing - Environmental Healing Services, a firm which recommends that precious stones and crystal healing be utilized to mitigate adverse health effects from RF emissions.

Such spirited litigation often ends up counterproductive to the intended goals of those filing the actions, frustrating those looking for an empirical reliable evaluation of 5G health effects that holds up under scrutiny. It also probably does not help that the Children’s Health Defense is heavily involved as a lead and driving force.

This action does show us the ongoing debate over 5G’s effects on human health is far from over. Its deja vu resemblance to the 2022 incident in Pittsfield, Massachusetts, is unsurprising considering CHD’s involvement. In 2022, Verizon's tower was ordered shut down by the local Board of Health due to complaints from residents, a decision later retracted amid legal pressures and regulatory clarifications favoring federal oversight on wireless radiation safety.

Hoplite will continue to track developments in this case as well as those in Loper Bright Enterprises vs. Raimondo, and Relentless Inc. vs. Department of Commerce, which are revisiting Chevron Deference at the US Supreme Court level.

Dish Wireless Unlikely to Emerge as a Thriving Viable 4th Carrier to Replace Sprint

The long held hope that Dish Wireless would emerge as a viable 4th wireless carrier in a market that lost Sprint in 2020 due to merger with T-Mobile, is in peril.

Dish's standalone 5G project faces significant headwinds as EchoStar, its parent company, unveiled disappointing Q4 2023 earnings. A 10-K SEC showed a potential cash shortfall against a $1.98 billion debt due in November, 2024. EchoStar, which acquired Dish in late 2023 to boost 5G network funding, has the cash on hand to service $951 million maturing debt late 2023 into early 2024, but the November 2024 debt maturation looms as a serious threat to its solvency as a company.

Additional capital and debt restructuring are likely a foregone conclusion.

Amidst speculation of bankruptcy, Dish leaders, during the 2023 Q4 call, attempted to reassure investors of Dish's initiatives to reduce expenses by $1 billion and migrate Boost customers to the nascent Dish 5G network, decreasing reliance on the AT&T and T-Mobile, where Boost exists as a Mobile Virtual Network Operator (MVNO), to further consolidate operations and reduce costs.

Despite its efforts, Dish lost 123,000 Boost retail wireless customers in Q4. This underscores a trend of declining subscriber numbers. With just 7.38 million Boost subscribers left, down from 10 million in 2020, Dish is in a do or die moment to revitalize its services and fulfill its 5G ambitions.

If Dish is unable to salvage its 5G endeavor, then the likely outcome will be fewer choices for consumers, higher subscription prices and reduced quality of service. But, that remains to be seen as the year is still young.

Monstrous AT&T Outage Leaves Questions, Few Answers

AT&T's network faced major disruptions across the United States on Thursday, leading to widespread outages affecting cellular service and internet connectivity.

According to Downdetector, over 32,000 AT&T outage reports were filed by customers around 4 a.m. ET. This number peaked at around 71,000 before 8 a.m. ET. Major cities such as Houston, Chicago, Dallas, Los Angeles, and Atlanta were among those hardest hit by the service interruption.

The ripple effect of AT&T's troubles was felt across other networks as well:

Verizon, T-Mobile, and AT&T subsidiary Cricket Wireless reported connectivity issues, primarily when their customers attempted to contact AT&T users. Despite the challenges, Verizon and T-Mobile confirmed that their networks were operating normally, suggesting the surge in outage reports on Downdetector for their services were likely due to failed attempts at reaching AT&T subscribers.

By late Thursday afternoon, AT&T announced it had successfully restored service for all affected customers, though it did not disclose the cause of the outage. Speculation from experts points to a possible cloud misconfiguration or human error, with AT&T claiming in a statement that the cause was not a cyberattack but, instead, a software update. More specifically, "the application and execution of an incorrect process used as we were expanding our network".

The incident has prompted an investigation by the FCC, with assistance from the FBI and the Department of Homeland Security.

The outage has raised significant public safety concerns, as some AT&T customers found themselves unable to reach emergency services via 911.

Local emergency services in cities like San Francisco and Chicago advised those affected to use landlines or seek assistance from individuals with different carriers to make emergency calls. The incident underscores the need for robust and reliable communication networks, especially in emergencies, and will doubtlessly spark many conversations on preparedness and response strategies to prevent future outages.

Hoplite will continue to monitor this developing situation.

5G Frequencies Dealt a Cheap Shot in Super Bowl Ad

The fuzzy laws of RF signal propagation rear up their strangeness and physical limitations at the oddest times. True, much of modern society is reliant on radiofrequencies, whether it’s cellular, Wi-Fi or Near-Field Communication (NFC). But they usually function as a background medium and not a subject of conversation, barring the occasional struggle to find decent coverage when streaming a video or something like that.

Spectrum Internet used the world’s largest global stage to remind viewers that their landline fiber connections are not limited by physical barriers such as walls, trees, and buildings, as is the case with cellular signals, particularly the higher range frequencies utilized for 5G communications

The ad was targeted at T-Mobile’s broadband alternative: Fixed Wireless Access (FWA). 5G allows for high enough throughput rates that wireless carriers quickly realized that it could serve as a substitute to fiber and coaxial cable for home internet service.

The problem comes when beaming the 5G signal from the antenna to the home. It doesn’t pass through barriers well. So this family quite humorously takes to bashing out their walls to allow it to pass unobstructed. Leading to the parent asking: "So, instead of getting us Spectrum Internet that's fast and reliable 24/7, you got us Internet that can be blocked by a wall?”

T-Mobile added 2.1 million Fixed Wireless Access customers in 2023. So landline broadband carriers such as Spectrum, Comcast and Cablevision view this novel use of 5G as a long-term entrant into the space, a serious competitor.

Hoplite will continue to monitor what effect, if any, this will have at the federal regulatory level, as providers vie for FCC support for their services, and look for ways to constrain the competitive marketplace to double down on existing oligopolies as opposed to letting free markets take their course.

Was This Small Cell Really Necessary?

Take a little tour with us, as we ask the question at each spot:

Is this small cell site really necessary?

In certain topographies, small cell solutions seem like the perfect fit, especially areas with low lying structures and open stretches of space.

But, in urban neighborhoods with canyon-style streets, is that small cell on the corner serving anyone other than those who happen to be right at that intersection, with no further propagation?

Let’s get started…

Location 1: Jersey City

Small Cell at Monmouth Street, Jersey City

Flanked by 2 large retaining walls, this site may hit the residences up the street. But it’s lucky if it reaches the intersection to cover cars and pedestrians there. Not hard to believe they just put it up there to unload it from their inventory as opposed to performing any useful coverage function.

Determination: Barely

Let’s move on…

Location 2: Lavallette

This was a trick question. No small cell at this location. But the low lying shore homes and flat terrain make this environment a solid choice for a handful of small cells atop utility poles over, say, a larger monopole site that would disrupt the scenic view and maritime feel.

Determination: Great location. But no small cell here at the moment

On to our next site…

Location 3: Jersey City

There is enough open space to make this site half way functional. The large indoor parking garage and public building prevent it from 360 degrees of signal propagation. Not a throwaway like the other Jersey City site. Jersey City is a tough town for cellular coverage in the downtown district.

Determination: Not bad. But not great!

Onward we tread…

Location 4: Cliffside Park

At least this small is a little ways up the upward gradient of Edgewater Road. This allows it to disperse a signal over an extent of Palisade Avenue. But, head further up the hill and it isn’t helping much.

Determination: OK, considering the topography

And further onward and downward…

Location 5: Edgewater

The large multifamily building to the south and the Palisades ridge to the west limits propagation here. But the open parking lot and everything eastward and northward being accessible makes this small cell functional.

Determination: 180 degrees of coverage. Not bad at all.

The next small cell in our little survey…

Location 6: Marlboro

This is an all around solid location for a small cell. Low lying retail shops, level terrain and a busy Route 9. The small cell is just tall enough to make use of the ideal location and broadcast signal as far as the frequencies and output level allows.

Determination: Best location thus far

Final site…

Location 7: Newark

This small cell is not utterly useless. Rutgers and Essex County have college campuses right there. But, the site is low lying. Personally, I would have placed atop University Avenue on the bridge further down Raymond Boulevard to give it some elevation.

Determination: Useful but location subpar

That concludes our little small cell sampler tour, with our informed assessment of each location.

How Commercial Fishermen May Help Roll Back FCC Authority Over Wireless Communications

The principal of Chevron Deference will be on trial in early 2024.

On January 17th, the U.S. Supreme Court will hear oral arguments for 2 cases: Loper Bright Enterprises vs. Raimondo, and Relentless Inc. vs. Department of Commerce

The Supreme Court will determine if the Secretary of Commerce, in ostensibly following the Magnuson-Stevens Fishery Conservation and Management Act, has the statutory authority to require commercial fishers to foot the bill for onboard observers for some fishing voyages. The plaintiffs claim the Commerce Department exceeded its legal authority. It all comes down to how much deference the court should give the agency’s interpretation of the act.

Since 1984, Chevron Deference generally affords administrative agencies the benefit of the doubt, with lots of finer points and exceptions accrued over time. But, that being the general rule.

However, if the highest court in the land sides with the commercial fishermen, then it would have a knock on effect to all federal agencies empowered with reasonably interpreting and enacting the specifics of laws passed by Congress.

Take, for example, the 2018 FCC Small Cell Order which preempts for the most part a local jurisdiction's authority to manage its own public ways when it comes to 5G deployments. FCC orders like this could all be revisited, to the benefit of towns and the detriment of wireless carriers.

A lot remains to be seen, but it is one of the compelling trajectories which will unfold in 2024, leading to a potentially altered legal and regulatory landscape in the end.

The arguments will be made to a Supreme Court that leans heavily conservative in makeup, making the likelihood that the broader question of the extent of an agency's power to interpret laws, specifically challenging the 'Chevron deference' established in 1984, will substantially evolve when all is said and done.

The underlying rationale for courts deferring to an administrative agency’s interpretation is due to the presumed expertise of the agency compared to judges and juries of the court system, which may have little or no knowledge of the subject and might risk doing great harm to the public good and rule of law by overly meddling in challenging technical subject matter.

The Magnuson-Stevens Act allows fishing plans to include observers that monitor the impacts of fishing on marine environment and ecosystems in regard to long term sustainability. What is unclear is who bears the cost of this monitoring. The Supreme Court’s decision could start a chain reaction across multiple industries.

Plaintiffs Loper Bright and Relentless Inc. object to a 2020 regulation requiring them to partially finance these observers, arguing it significantly impacts their profits. Lower courts sided with the National Marine Fisheries Service, a branch of the NOAA.

The Supreme Court, however, is likely to focus on the broader issue of Chevron deference, and whether to refine or override it. Chevron deference has been a cornerstone since 1984 for federal agency interpretation of statutory powers.

If Chevron deference is overturned in these cases, in whole or in part, it could signify a significant shift in administrative law, potentially restricting agency flexibility and affecting a wide range of issues from environmental protection to workplace safety and, of course, telecommunications, which has long been the purview of the FCC.

The outcome could hobble the FCC’s future ability to regulate the provision of telecommunications service, especially in regard to the land use aspects.

While it is unlikely that the current cases will have much effect on spectrum auctions and personal device safety standards, the preemption of the FCC over local zoning powers has caused the most push back, the most furor, among the roughly 20,000 municipalities across the US.

Qualcomm Pushing the Boundaries of 5G

When 5G comes to mind, most people think of service providers and equipment manufacturers like Verizon, AT&T, T-Mobile, Samsung, Apple and Ericsson. This is not an incorrect or misguided tendency. The big 3 carriers are leading the way toward a 5G future and device makers like Apple, Samsung and LG continue to release mobile devices that push the limits of the user experience.

On top of that, Samsung and Ericsson also make carrier infrastructure equipment such as the antennas and equipment shelters you come across along the highway while driving on I-95 on the east coast and I-5 on the west coast, and which sit atop the rooftops of hotels, apartment buildings and the like. Go a little further upstream to the network core, and names such as Cisco and Juniper crop up, providing the edge routers, aggregation routers, backend servers, switches, hubs and every other form of gear needed to assemble and power some of the most complex networks on the planet.

Research and Development

Before any of this can happen, however, focused research and development must come away with breakthroughs that improve upon existing paradigms. This has happened roughly every decade in cellular communications, resulting in successive generations of technology: 1G, 2G, 3G, 4G and, now, 5G, with 6G to follow before we know it. Developments can happen anywhere, from a researcher’s home office to a major breakthrough at a university which is published as open source and picked up by every applicable tech company to use for their own endeavors. They may be introduced at trade shows, demonstrated at annual conferences, or simply show up as consumer end products, straightaway, if derived in relatively final form.

When sufficient ground is broken, standards are established and published by organizations such as the 3GPP (3rd Generation Partnership Project) to provide consistency across equipment makers and network services. From Beta models to long term stable, supported releases and multiple tiers between the two. This has already happened with 5G. The standards have been set and deployments have begun in earnest across the major US carriers and across the world, with each carrier and each market looking to get an edge on competitors and blaze the trail for others to follow.

5G Promises Unfulfilled…So Far

While 5G arrived with great fanfare, it has faced significant technical issues. Chief among them is the usage of millimeter waves to power 5G networks. If unresolved, the initial promise of 5G bandwidth and low latency may never come to pass. Thought to be the future of wireless communications, frequencies at the 24-40 GHz range have run up against the laws of physics and the fundamental properties of electromagnetic waves. Simply put, they degrade quickly when traveling through open space and can barely penetrate any solid surface, such as a wall, tree or car.

A 5G small cell antenna broadcasting mmwaves from atop a 40’ utility pole may reach as far as 1000 feet from the source, but only if passing through wholly unobstructed open space. Add homes, buildings, trees, leaves and other obstacles to the scenario, and a 5G signal may not get much further than the intersection from which it emanates. This means, for the moment, that mmwave 5G is not a viable solution to provide blanket 5G coverage across large geographic areas. For the time being, Sub6 frequencies, such as the 600-2100 MHz used for 4G and recently auctioned C-band frequencies in the 3-4 GHz range are being used to just get some form of 5G out there to subscribers, to realize at least some of the benefits.

Existing towers and rooftops are able to broadcast Sub6 frequencies due to their superior propagation when compared to mmwaves. This allows for quick deployments on existing infrastructure. A quick patch. But industry leaders understand that Sub6 signals will not provide the glittering intersection of rich experiences, automated vehicles, and deep persistent extended reality envisioned as part of an encompassing 5G future.

Enter Chipmaker Qualcomm

While many wireless equipment makers have diverted their focus to doing the best they can with Sub6 frequencies, Qualcomm has doggedly pursued improvements to mmwave signal propagation in order to turn it back into a commercially viable spectrum range for 5G communications. First among Qualcomm’s efforts has been developing a mobile device modem chipset that can process both Sub6 and mmwave signals, or “spectrum aggregation”, as it is called in the industry. The 2021 Snapdragon x65 chip was a big step in that direction.

Their most recent push is along the FeMIMO, or Further Enhanced MIMO, line of effort. MIMO stands for Multiple Input, Multiple Output, and has been utilized in 4G networks, but is expected to come to full fruition in 5G networks. A crowded public way, with rapidly moving vehicles and pedestrians, as well as nearby homes and businesses, all connected to the 5G network and receiving advanced services, will require levels of coordination not yet seen in wireless networks. Qualcomm is unveiling advances on features such as beam management, ultra-reliable, low latency communication (URLLC), and synchronization between time division duplexing and frequency division duplexing.

They are also developing solutions to deal with signal reflection in urban outdoor settings, which results in network degradation and asynchronous signal processing. Why are they doing this? Why haven’t they and others given up on the higher frequencies due to the physical challenges they present?

Simple Answer: Speed and Capacity

In a recent project with Chinese company ZTE, 5G download speeds on mmwave signals reached levels never seen before: 2.43 gigabits per second on a single device. This test is already a year old and Qualcomm has since exceeded its results, with speeds in excess of 10-20 GB per second in the future. For these reasons, do not expect the industry to permanently settle on the less capable Sub6 spectrum. Expect to see mmwave 5G reappear in the near future as these developments trickle down to enterprise ready equipment.

US Steel in Wireless: A 21st Century Model

The impression of steel brings to mind medieval long swords and plate mail armor, skyscrapers, kitchen utensils, large abstract sculptures and a host of other artifacts of man’s design. Steel also figures heavily in the field of radio and wireless communications:

Picture the iconic lattice towers with red beacon lights atop them hundreds, if not thousands, of feet in the air.. There are also steel monopoles, the contemporary archetypal representation of a cellular base station. Steel cabinets are laid atop steel equipment platforms. Antennas are fastened to steel sector frames. It goes on and on.

In all, steel is a large component of wireless infrastructure. Not too long ago, when it seemed like globalization, liberalism and open borders would lead to an interconnected network of nations and their economies, all trading freely for the best prices and use of resources and capital, steel was sourced from many places, including China and many other nations.

Fast forward to 2022, and there is general trend of nation’s turning inward, looking to domestically source materials and technology. Increased tariffs on imports have tamped down the import of steel for use by US businesses, including the wireless industry.

This general direction has impacted the Infrastructure Investment and Jobs Act, which mandates adherence to Build America, Buy America sourcing requirements when using disbursed funds for infrastructure build out. This includes the wireless industry, which traditionally obtained much of its raw steel from China.

Bill guidelines state that “All iron and steel used in the project are produced in the United States. This means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States.”

Established Trump-era steel import tariffs, along with a huge increase in importation costs due to vessel shortages have made this mandate easier to work than it would have been in, say, the year 2010. The US steel industry faces its own challenges, including parts shortages, labor shortages, and working out worker benefits amid union pressures. But all of them appear to be surmountable in the near future.