Executive Summaries Sep 16, 2019
Different Legislative Approaches to 5G
The offer of alluring benefits for new and disruptive technology to become omnipresent in a very short time frame is appealing. The adverse consequences could be very detrimental. Governments can choose to adopt legislation pre-emptively to protect against social concerns before the technology even sees the light of day or legislate to speed up the implementation of the technology and address social issues that may arise down the road.
This is the moment at which we as a society find ourselves with respect to 5G technology. Governments are choosing whose interests to serve: industry versus citizens.
In our first article on the legal implications of 5G, we referred to anticipated benefits of 5G technology and raised privacy, security, health and environmental concerns. In this second article, we consider how governments and municipalities around the world are approaching 5G from a legislative standpoint. The approaches are literally all over the map.
In this article, we will look at how Europe and the United States are approaching the deployment of modern day telecommunications technology by legislating in drastically different manners. As we will see, the US is appearing to take the route of deregulation in the name of progress while European countries are showing more restraint and caution in the passing of their laws.
The FCC’s Declaratory Ruling
Beginning with our neighbours to the south, the FCC, the American equivalent of our CRTC, released a Declaratory Ruling in late 20181 that, among other things, imposed much shorter time frames in which municipalities must approve 5G projects. As a result of this, municipalities and counties across the US now have as little as 60 days to green light 5G projects in their territory. When compared to the 150 days that used to be allowed under prior regulation, this new shot clock leaves very little time for municipalities to hold public consultation forums with their citizens and assert the potential environmental and health impacts a 5G project may bring about. The FCC justified its ruling by saying that it was “committed to doing our part to help ensure the United States wins the global race to 5G to the benefit of all Americans.”
As expected, the ruling received quite the backlash when it was announced. Cities across the country voiced their concern over the lack of effective overview the rollback of regulations would create even if that was in the name of streamlining the process. Municipalities challenging the FCC’s ruling lost a court battle in January of this year when the U.S. Court of Appeals for the Tenth Circuit denied a motion to stay the Declaratory Ruling. The courts determined that the plaintiffs had not demonstrated that they would suffer irreparable harm if the ruling were to stand as is.
Health and environmental advocates suffered a further blow on August 8th 2019 when the FCC released a memo in which they proposed maintaining current RF exposure safety standards, implicitly suggesting that the standard was safe and would apply to the upcoming deployment of 5G devices. The proposal followed over six years of public input and review and was a result of close cooperation with the FDA’s Center for Devices and Radiological Health. This memo is also indicative of the American government’s views on the safety of 5G technology and their lack of apprehension over the health and environmental concerns voiced by community members across the US.
In an interesting turn of events however, the US court of appeals on August 9th 2019 struck a blow to part of the FCC’s ruling that disregarded environmental and historical preservation reviews when its judges wrote that those reviews were meant to “assess the effects of new construction on, among other things, sites of religious and cultural importance to federally recognized Indian Tribes.” While the court ruling focused primarily on the property rights of American Aboriginal tribes, it nonetheless opened up the door for potential lawsuits from environmental protection groups.
The European Electronic Communication Code
On December 18th 2018 and after an almost two-year long legislative process, the European Union finalized and released its European Electronic Communication Code (EECC)2. The aim of the code was to completely overhaul the EU’s member states’ telecommunications laws by harmonizing them and future proofing them in preparation for, among others, the advent of 5G. While not a binding piece of law, the EECC is akin to a convention, offering suggestions on how to legislate, requiring each member state to adopt its own laws.
The text of the EECC begins by declaring that its main role is to establish a legal framework for the deployment of a future telecommunications network throughout Europe that is harmonious with existing laws and regulations, in particular those dealing with “public policy, public security and public health”. This cautionary approach in the opening lines of the EECC is very telling of the content that can be found in the rest of the almost 200 page long document.
With the EU recently enacting its General Data Protection Regulation (GDPR) which provides for some of the world’s strictest and most comprehensive data privacy laws, it should come as no surprise that the EECC contains many dispositions that require 5G network operators to design and maintain their networks with privacy and security as a priority. The EECC for example allows for member States to exclude companies that do not comply with their regulatory and legal framework, in the name of national security.
The EECC also imposes guidelines for high standards of reliability onto network operators. A European Commission report on the Cybersecurity of 5G networks recommended advanced security measures given that “the dependence of many critical services on 5G networks would make the consequences of systemic and widespread disruption particularly serious”. The critical services referred to by the commission were reliable communications for “the safe and good operation of vehicles and their on-board communications systems’’, an obvious reference to self-driving cars.
Turning now towards health and environmental concerns, they are addressed directly by the EECC. The document goes so far as to explicitly state that “the need to ensure that citizens are not exposed to electromagnetic fields at a level harmful to public health is imperative”. It also stresses the need to roll-out new networks across the continent in a “fair, efficient, and environmentally responsible way”. Member States are even given the explicit right to limit the roll-out of new networks “based on the grounds of public policy, public security, or public health” if such a limitation is explained and justified by the State in question. While individual States can chose to limit or control the deployment of 5G on their territory, the power of local governments within those States to do so is not always as obvious.
A few European jurisdictions have halted 5G testing in the name of public safety. The Belgian government decided to temporarily shelve a 5G pilot program in Brussels in April of this year over concerns that the technology was potentially exceeding radiation limits imposed by the city. In Switzerland, the canton of Geneva issued a similar stop order with regards to the rollout of 5G antennas over similar health and environmental concerns. Because the Swiss federal government has exclusive jurisdiction over the field of telecommunications, the upcoming legal battle between State and local authorities should prove to be an interesting one.
Tonia Antanazzi, a British MP, recently spoke out in the House of Commons during a parliamentary debate on 5G adoption in the UK. In her words “technology is wonderful and offers a great many benefits to all, but we cannot continue to deny that there is an impact of some people’s health and wellbeing”. She went on to say that cautionary legislation “is not about stopping progress; it is about making sure that there are no health concerns as a result of the technology, and about doing what is best for our constituents”. This poignant testimony is an example of the type of debate actively going on in Europe and is very telling of the different manner in which 5G adoption is being handled across the pond.
Finding the right balance between progress and caution is a rather delicate juggling act.
The different actors involved have their own agendas, interests, resources and will. In an upcoming article, we will consider the Canadian legislative environment with regards to the deployment of 5G technology.
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