FCC 5G Regulations Let Municipalities Require Checks on Airwave and Airspace Safety

By Jeff Schervone 2/23/2021

5G builds in New Jersey are pushing regulatory “guardrails” set by the Federal Communications Commission (FCC).

In January 2021, the Counsel for the Borough of Lavallette New Jersey conditionally approved a Verizon application to deploy five 5G small cell nodes in the Borough. One condition required Verizon to provide a certification of noninterference with FAA, DOD and DOT radio frequencies.

As part of its Fast 5G Plan, the FCC issued its 2018 Small Cell Order and a Moratoria Order for the purpose of “Removing Barriers to Infrastructure Investment.” The Small Cell Order sets shot clocks for local authorities to approve or deny siting applications and, among other things, presumes a barrier to deployment for inaction. The Orders “balance[] the interest[s] of wireless service providers to have siting applications granted in a timely and streamlined manner and the interest of localities to protect public safety and welfare and preserve their authority over the permitting process.”

Verizon has applied to deploy small cells in Lavallette since 2019. The latest siting application addressed deficiencies identified in prior applications that were denied. The condition requiring Verizon to certify noninterference with aviation responds to an emergent public safety and welfare issue in light of the report and its fallout. Lavallette is close to heavy military and civil aviation traffic along New Jersey’s coastline.

The Council cited an alarming report dated October 7, 2020 which is raising concerns in government and the aviation industry that 5G in certain millimeter wave bands licensed to Verizon and others could interfere with radar altimeters presently used in all variety of aircraft, manned and unmanned. Interference with altimeter operations could, according to the report, lead to catastrophic failures and crashes. The report indicates that if needed, lead times and costs for technical fixes would be significant. The certification requirement effectively demands Verizon verify that the equipment proposed in its application does not pose a public safety hazard to aircraft operations.

Lavallette is not alone. According to Verizon, 5G builds are under way along New Jersey’s coastline in Asbury Park, Belmar, Sea Isle City, Lavallette, Long Beach Island, Seaside Heights, Seaside Park, Atlantic City, Margate, Ocean City, Wildwood and Cape May. In addition to proliferating devices connected to wireless networks, unmanned drones used in commercial and public safety applications are also proliferating. Lavallette’s concerns about its airspace would apply to many other municipalities.

Requiring compliance certifications in applications to deploy 5G gear appear to be commonplace. Applicants are often required to certify compliance with FCC RF health and safety standards, structural integrity of the builds and local ordinances and building codes. The FCC Rules typically require municipalities to apply principals of nondiscrimination to local regulations and to publish requirements in advance.

Other issues that might requiring certifications include compliance with FCC orders related supply chain security so that any proposed gear or components do not pose a national security threat.

Whether or not Verizon satisfies Lavallette’s condition for approval, requiring reasonable and necessary compliance certifications is one way to for local authorities to assert control and regulate public rights-of-way, including from known and unknown hazards.

Posted in

Schervone Law