The Race to 5G

By: Geovanny Mora

5G capability will be the Federal Communications Commission’s (“FCC”) gift to America by the end of this year.  The technology is expected to be built into the networks of carriers such as AT&T, and will be deployed by other major carriers by next year.[1]  5G sparked interest back in 2015 subsequently causing millions to be invested into grants for experimentation.[2]  5G is the “next generation of internet connectivity, essentially offering faster speeds and more reliable connections on smartphones and other devices. . . .”[3]  5G works by utilizing “a higher-frequency band of the wireless spectrum called millimeter wave.” Unfortunately, because the millimeter waves do not travel as far as previous wireless networks, 5G will require more antennas.[4]

 

The need for more antennas has the possibility of intruding onto health and property rights.[5]  Initial health concerns are always common for new technologies, such as when the public became concerned with emission on the release of cellphones and microwaves.  5G will be regulated by the FCC but “the FCC is not a health agency.”[6]  “The FCC only regulates communications and methods for limiting electromagnetic interference between radio frequency (RF) energy”[7]  Part of the health safety concerns stems from Congressional action pushing to streamline and expedite 5G implementation.[8]  Groups opposed to its expedited implementation seek “comprehensive review of the current RF emission.”[9]

 

Opposition to 5G’s hurried implementation has also been heard in court. This October, the D.C. Circuit refused to suspend the FCC’s “rule intended to accelerate the deployment of infrastructure to support the next generation network.”[10]  The petitioners, consolidated with The Natural Resource Defense Council and numerous tribes, argued that the FCC rule exempting 5G antennas from certain environmental and historical regulatory reviews would blemish natural and cultural sites.[11]  The tribes are fighting the FCC’s order, which declared that the act of deploying antennas necessary to support 5G networks, “does not constitute a ‘federal taking’ or a ‘major federal action.’”[12]  In one of the many motions opposing the FCC’s order, it was argued that the FCC’s order would cause “irreparable harm if not stopped by the court.”[13]  The tribes also argued that the FCC failed to consult the Native American governments; interestingly FCC Commissioner Jessica Rosenworcel, dissenting on the order passing, stated that the “vote should have been delayed to more closely assess the real world impacts on tribes . . . .”[14]  In sum the FCC’s hurried approach to 5G implementation, along with America, will also “gift” the legal world with litigation in the areas o

[1] Growing Demands for Computation Power Taxing Networks, WASHINGTON INTERNET DAILY (Sept. 21, 2018) https://advance.lexis.com/api/permalink/f5cae2e5-f4c9-47cf-8725-cfdd7c7eadcf/?context=1000516.

[2] New Rules for CBRS Band get FCC ok Over Rosenworcel Dissent, WASHINGTON INTERNET DAILY (Oct 24, 2018) https://advance.lexis.com/api/permalink/86baa5d6-5734-4889-9ee1-bf4f966490df/?context=1000516.

[3] Mike Moore, What is 5G? Everything you Need to Know, TECHRADAR (last updated Oct. 25, 2018) https://www.techradar.com/news/what-is-5g-everything-you-need-to-know.

[4] Matthew Frankel, What is 5G?, FOOL, https://www.fool.com/knowledge-center/what-is-5g.aspx (last visited Oct. 25, 2018).

[5] Email from William N. Sosis, NEW JERSEY STATE BAR ASSOCIATION COMMUNITY NET, to Young Lawyers Division (Oct. 8, 2018 7:45PM).

[6] Id.

[7] Id.

[8] Streamline Small-cell Deployment act Opponents Cite 5G RF Emission Concerns, Existing Issues, WASHINGTON INTERNET DAILY (Oct. 17, 2018) https://advance.lexis.com/api/permalink/7d06995a-2b6c-4d84-8355-dd864fc713c1/?context=1000516; see also Accelerating Wireless Broadband Deployment by removing barriers to Infrastructure Investment, FCC 18-133 (FCC Sept. 26, 2018) (Declaratory ruling and third report and order); see also STREAMLINE Small Cell Deployment Act, S. 3157, 115th Cong. (2018).

[9] Streamline Small-cell Deployment act Opponents Cite 5G RF Emissions Concerns, Existing Issues, supra note 8.

[10] Kelcee Griffis, DC Circ. Won’t Halt FCC’s Next-Gen Rule Amid Challenges, LAW360 (Aug. 15, 2018) https://advance.lexis.com/api/permalink/128a79c9-1579-4328-a26b-948ee1b3b3bd/?context=1000516.

[11] Id.

[12] Id.

[13] Id.

[14] Id; see also Accelerating Wireless Broadband Deployment by removing barriers to Infrastructure Investment, supra note 8.

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