Constitutional Infrastructures: The Politics of Urban Sovereignty in the “Race to 5G”

Abstract

In the late 2010s, deployment of fifth-generation (5G) wireless technology in the United States made headlines as the first Trump administration pushed for victory in the international “race to 5G.” In concurrent legal proceedings, US cities sued the Federal Communications Commission (FCC) over its 2018 orders to hasten 5G rollout. In 2020, the Ninth Circuit upheld the FCC's preemption of a range of municipal regulations of 5G deployment in City of Portland v. United States. Taking a constitutionalist approach to the study of urban infrastructure politics, this article argues that the FCC and the Ninth Circuit undercut the ability of municipalities to enable their citizens’ local political agency over the terms of infrastructure deployment—and, simultaneously, the terms of urban social progress. The court's decision to treat the aesthetic and the economic aspects of 5G differently, taking a commonsense approach to aesthetics as a local matter but deferring to the FCC on economic concerns, advanced the FCC's nationalist project of connectivity as the making of a single national market through material means. At stake was a narrowing of citizens’ legitimate role in the shaping of city futures, a role whose implicitly constitutional infrastructures demand careful maintenance in the digital age.

Keywords

constitutionalism fifth-generation (5G) wireless cities politics power governance space/place/scale dynamics law

In John Gast's classic painting American Progress (Gast 1872), an airborne Lady Columbia lays the telegraph wire that would modernize the American West (Figure 1a). The image attests to a long-standing idea of progress as the unfurling of technological infrastructure, enfolding US nation-building into a project of material connectivity and bridging centers of urban activity to the rural frontier. A triumphant glow illuminates the enlightened landscape from east to west, driving out the darkness and the “unmodernized” native people and untamed wildlife with it.

Figure 1.

Two depictions of connectivity as an illuminating force. (a) The figure of Lady Columbia eradicates the “darkness” of uncolonized territory as she carries telegraph wire westward in the nineteenth century. (Painting by John Gast, American Progress, 1872, oil on canvas, Autry Museum of the American West, Los Angeles. https://commons.wikimedia.org/wiki/File:American_Progress_%28John_Gast_painting%29.jpg.). (b) Stills from an advertisement video, chronologically clockwise from top left. T-Mobile announces the launch of its national fifth-generation (5G) wireless service, depicted as a beam of bright light spreading across the country. (Screenshots taken by author from “T-Mobile Nationwide Coverage: It's On!” Online advertisement by T-Mobile USA, Inc., 2019, accessed November 5, 2021 at https://www.t-mobile.com/news/press/americas-first-nationwide-5g-network. Video no longer accessible.).

Through this device of expulsion, Gast was attentive to the way in which connection entails disruption. Today's triumphalist depictions of connectivity, by contrast, rarely even hint at the material and social disturbances wrought by technological transformation. In advertisements for fifth-generation (5G) wireless, the latest generation of wireless internet, connectivity again appears as a force that illuminates the darkness. In a T-Mobile ad from 2019, 5G emanates from cell towers as beams of light that spread seamlessly through cities and towns, bathing the nation in a pink glow (Figure 1b). There are no people or politics here, and the national map is unified in a uniform neon pink—not the familiar political patchwork of blue and red pixels whose distribution became so critical during the rise of Trumpism and the polarization of US politics.

Such rosy depictions reflect a vision of 5G connectivity as a force of national unity, not division. In the late 2010s, private ambitions to offer uniform 5G service were in step with a federal mandate by the Trump administration to pursue nationwide 5G deployment as fast as possible and win the global “race to 5G” (Haselton 2019). The idea of a race accelerated by threats from foreign, especially Chinese, competition, implied a well-defined horizon toward which the promises of American 5G would be directed. In 2018 Federal Communications Commission (FCC) Chairman and former Verizon lobbyist Pai (2018) laid out his own rosy vision capturing these ambitions:

[I]magine a future with 5G….Applications such as remote robotic surgery, virtual reality gaming and crash-avoiding smart cars could become reality. A strong innovation economy could propel the United States’ economic growth and create countless jobs.…And communities currently on the wrong side of the digital divide (especially lower-income urban and rural areas) could obtain quick connections for the first time.

Pai's dream was widely shared by political and industry leaders across the country, who began to invest in the idea that 5G would be, as the New York Times predicted, “more revolutionary than evolutionary” (Sanger et al. 2019).

The revolutionary potential of 5G lay partly in the technology's promise to enable long-anticipated “smart” systems of digital connectivity. Many of 5G's applications, from autonomous vehicles and virtual reality games to automated traffic lights and gunshot sensors, were expected to finally deliver the “smart city” environments that companies like Cisco and IBM had been promoting since the 2000s (Sadowski and Bendor 2019). Local public officials invested in 5G deployment to position their cities and regions as “smart” and innovative. The 5G revolution appealed not only to private investors and consumers but also to a wide range of political leaders; perhaps, contra Gast's depiction of American Progress, this would be a bloodless revolution, without any frictions, violence or losers.

And yet, as critics within and outside Science, Technology and Society (STS) have shown, urban development projects focused on deploying “smart” digital technologies may, by emphasizing technological advancements over human needs, encode technocratic values and erode democracy (Green 2019; Halegoua 2020; Mattern 2021). Perhaps predictably then, in the process of implementing its “race to 5G” policies the FCC made some enemies. In 2019, a coalition of cities, towns, and counties sued the FCC over three 2018 orders that greatly restricted the localities’ ability to regulate private 5G deployment at the local level. Despite its important governance implications for how the deployment of smart infrastructures should be shaped, and by whom, the case of City of Portland v. United States (2020) has not been widely discussed in the literature on 5G and internet technologies.

By comparison, much has been said about controversies related to low-level radiation emitted by 5G, especially in Europe. In spite of expert insistence that 5G is not a health hazard, some publics are not convinced (Reuters Staff 2020), recalling similar disputes over previous generations of wireless (Stilgoe 2005). While 5G safety concerns are often dismissed as conspiracy theories,¹ STS scholars have made some headway in correcting the asymmetries of such accounts. They have shown that 5G conflicts may be narrowly “staged” as disputes over factual claims about health, as in the Netherlands (Butot and Van Zoonen 2022), when in fact publics have a range of reasons to contest 5G rollout, such as claims to “experiential epistemic autonomy” in Italy (Crabu, Picardi and Turrini 2023). Others have described the role of geopolitical concerns in Western countries, where the privacy and security risks of 5G came to be dominantly framed as threats posed by foreign actors, primarily the Chinese state (Mansell and Plantin 2022). This may have limited the discussion of domestic risks, including surveillance by law enforcement agencies and private companies (Mattern 2019).

My argument builds on this scholarship while attending more specifically to tensions in the political imaginations of 5G across different scales of governance, raised prominently in the context of “race to 5G” policies in twenty-first century United States.² I take the case of City of Portland as a window into the stakes of a national 5G rollout for the localities whose “smart” futures were necessarily bound up in that rollout. City of Portland raises enduring questions about the role of local democracy in US federalism, where urban politics often clash with state politics and cities’ powers are subject to preemption by their states. In times of perceived tyranny, incompetence, and disunity at the federal and state levels, this ambiguous position of cities has provided an opening for reform-minded analysts to assert city empowerment as a possible source of hope for democratic governance and progressive change (Dahl 1967; Frug 1980; Harvey 2008; Barber 2013). However, these arguments for city-level democracy have rarely taken up the problems of governance of, by, and through urban technology that STS scholars have elaborated over the past several decades (Winner 1980; Foley and Miller 2020).

Taking these literatures together raises an important question: what relationship ought to be cultivated between the city as a site of political agency and the city as a site of technological development? I use the term “city” capaciously, to encompass the symbolic and constitutional position of city governments in representing localized polities and caring for the material, ecological, cultural and political environments their citizens inhabit. In approaching the litigation and judgment in City of Portland as important explorations of the question of the right role of the city, I ground my analysis of 5G and the city in the STS tradition of constitutionalism which examines the processes through which science and technology participate in constructing fundamental aspects of political agency and accountability (Jasanoff 2003, 2011).

I read City of Portland as a case in which different parties and the court expressed tacit expectations about local political agency that are bound up with infrastructural commitments in cities. Different ways of governing the installation of 5G equipment corresponded to different constitutional conceptions of what political capacities are entailed in governing a city, or by living in one. The national project of a race to 5G was a constitutional project that cast progress in terms of national and international economic and technological development, often at the expense of meaningful political agency vis à vis technology at sub-national scales. This reinforces what Jasanoff (2016, 390) has argued elsewhere: when economic logics are used to buttress universalizing imaginaries of progress, “political subjectivity is redefined and recast in terms that diminish agency.”

In this case, one element at stake for cities was the maintenance of political infrastructures of local sovereignty in the governance of digital disruptions. By conceptualizing 5G rollout as a project to create a single national market open to all private-sector investors, the FCC undermined the sovereignty of cities and thus demoted the political priorities of urban localities, in moves largely upheld by the Ninth Circuit Court of Appeals. The court affirmed the FCC's deference to private actors as political representatives capable of choosing the right way to distribute urban technology. It recognized the city as an appropriate site and scale of political agency over some aesthetic aspects of local technology deployment, but not its economic ones. The decision thus bears the imprint of a nationalist imaginary of connectivity that cleaves the city as a site of national economic development from the city as a site of local land use politics. This implicit “separation of powers” has implications for essential aspects of urban citizenship: it impoverishes local economic agency and limits the range of political demands that citizens can make on the direction of technological development.

I proceed below by presenting the theoretical grounding for an STS-inflected constitutionalist approach to the study of urban infrastructure politics. I then elaborate two aspects of the City of Portland decision that had important constitutional dimensions: the FCC's universalizing ideal of a national 5G market geared toward national economic benefit, and the move by the US Court of Appeals for the Ninth Circuit to grant localities authority to regulate the aesthetics, but not the economics, of 5G deployment.

Constitutionalism in STS

In City of Portland, the plaintiffs argued that the FCC had wrongfully restricted their ability to govern technology rollout. The proceedings were configured at every step by an underlying political question of relevance to constitutionalist thinking in STS: what is sovereignty in technological decision-making and to whom should it be accorded?

As it pertains to cities, this question has long preoccupied scholars in urban studies, geography and law. In the last half-century, a variety of progressive projects have revisited the city—a scale of governance synonymous with democracy itself in classical Western antiquity—as a foundational site at which basic human rights and political liberties are constituted. Internationally, the idea of a “right to the city” gained traction in urban and legal studies, framing the governance of city spaces in terms of political rights (Brenner, Marcuse and Mayer 2011). Originally proposed by Lefebvre (1968), the right to the city was a call to give citizens, rather than corporations and the market, the power to shape urban space. Marxist geographer Harvey (2008, 23) argues that this right is best understood as “a right to change ourselves by changing the city” and as “a common rather than an individual right.” Arguments in this tradition call for upholding urban development as an object of urban politics and giving political primacy to those who must live with its consequences.

Arguments for expanding political agency at the city scale take on particular significance against the backdrop of cities’ relative powerlessness within American federalism. US municipalities have no power which is not granted to them by their states, with the exception of “home rule,” where some state constitutions grant municipalities the ability to pass laws to govern themselves, subject to various limitations. The resulting patchwork lends an ambiguous status to US cities, which has led scholars to advocate for city empowerment as a way of addressing democratic deficits in US federalism. Legal scholar Frug's (1980, 1068) landmark article “The City as a Legal Concept” paved the way for thinking about city power in the United States as a vital but repressed source of what Hannah Arendt called “public freedom,” or “the ability to participate actively in the basic societal decisions that affect one's life.” Others have relatedly argued that cities should be empowered to deal with problems of inequality, distribution, and development that inevitably come into sharper resolution at the local scale (Schragger 2016, 2022).

These arguments have stressed the need for constitutionalizing city power, but they tend to miss or sidestep the constitutional role of technology in the articulation of the terms and conditions of political agency in modern life. For over two decades now, the constitutionalist strand in STS has studied the tacit constitutions through which “science and technology…are altering the very foundations of identity, citizenship, and sovereignty” (Jasanoff 2003). This area of work has shown how technological innovation raises concurrent questions about the kinds of futures we want and the formation (or constitution) of the collective “we” that makes these judgments (Jasanoff 2011, 2021; Jasanoff and Kim 2015; Hurlbut, Jasanoff and Saha 2020). Constitutionalism in STS contends that technological progress is a mechanism of political ordering: in deciding what technological progress is, societies tacitly and explicitly set the terms for how politics ought to be.³ STS approaches to digital constitutionalism⁴ in particular have recognized that human engagement with the digital world entails a reformulation of basic concepts like freedom and citizenship, upon which the democratic social compact rests (Gabrys 2014; Kelty 2014).

Cities, as governance entities closely tied to popular conceptions of “local” democracy, provide a particularly informative site at which to better understand how citizenship is constituted in relation to national infrastructure development projects. Globally, cities are playing more active roles in technological development and governance, emerging as battlegrounds of “infrastructural populism” (Beveridge, Rudolph and Naumann 2024) and generating movements for “technological sovereignty” (Lynch 2020) and “tech regulation localism” (Nielsen 2024). US-based studies have shown that considerations of local significance are often neglected in wide-scale infrastructure rollout, in ways that may do special injustice to rural populations (Phadke 2011; Ali 2021). Focusing on the power imbalances of the urban-rural divide in infrastructure provision, however, may miss the role that cities play in constituting (or reconstituting) local power as a counter to state and federal power. In City of Portland, I suggest, the very meaning and definition of the “local,” and of local agency and politics with it, was at stake.

Applying constitutionalism to city-scale politics raises a range of questions that expand upon interpretations of urban infrastructure simply as a technopolitical artifact. In STS, the analyst's concept of “infrastructure” is most often associated with Bowker and Star (1999), who advocated an analytical practice of infrastructural inversion (Bowker 1994), or bringing infrastructure into the foreground. Yet, years earlier, Winner's (1980) formative analysis of the political nature of technical artifacts helped to lay the groundwork for STS scholarship on the political aspects of urban infrastructure. This approach considers physical artifacts in the urban environment to be “constituted through arrangements of power and authority that embody or enact political goals” (Foley and Miller 2020; Foley et al. 2020, 324; Hommels 2020).

Importantly, foregrounding the politics of urban infrastructure is an everyday practice of US citizenship. As in City of Portland, publics often challenge infrastructural arrangements that condition key aspects of citizenship—including mobility, access to resources, and property and voting rights. Constitutionalism in STS anticipates that these political contests over material infrastructures simultaneously draw upon and reconfigure background expectations about the normative duties and obligations of subjects and sovereigns. Such expectations are, like formal constitutions, collectively compelling yet provisional, and, like all infrastructures, constantly in need of maintenance and renewal (Graham and Thrift 2007).

Building on this literature, my argument intentionally interweaves the concepts of infrastructure and constitutionalism, describing political commitments as de facto infrastructures to complicate the boundary work by which infrastructures are often coded as physical and material, and constitutions as legal and political.⁵ As Jasanoff (2003) crucially argued, constitutional order is shaped and changed by technological choices and related everyday practices that have little to do with formal law. Simultaneously, in making determinations about science and technology, courts serve as “theaters of public reason” and engage in practices of constitutional ordering that they do not articulate as doctrine (Hurlbut 2017; Jasanoff 2019). This article uses constitutionalism as a route into understanding the tacit expectations about subject-formation and sovereignty that underlie arguments about 5G infrastructure.

City of Portland and its Constitutional Effects

In popular accounts, 5G controversies are often explained in terms of two dominant risk framings: security risks posed by bad actors and health risks from radiation (Mattern 2019). While health concerns did play an important role in US disputes over 5G (Mims 2019), leading some cities to ban or temporarily halt 5G deployment, these issues alone did not account for the range of municipal regulations constraining 5G deployment in the mid-2010s. Unlike previous generations of wireless that relied mostly on 300-foot cell towers, 5G deployment in urban areas required a dense network of “small cell” access nodes, frequently compared in size to a pizza box or a backpack, installed on elements of physical infrastructure such as utility poles in the city right-of-way. This put 5G deployment squarely within the traditional jurisdiction of local governments, making 5G subject to city-specific zoning and right-of-way management practices, such as rules requiring telecommunications infrastructure to be disguised or built underground.

It was also typical for cities to charge one-time and recurring fees for private infrastructure attachments in the public rights-of-way, which many cities consider to be their most valuable public asset (Yoo 2018; Connolly 2019). Negotiating 5G fees was one tool through which cities could pursue more equitable internet rollout. For instance, the city of Lincoln, Nebraska offered carriers a heavily reduced annual small cell licensing fee (US$95 instead of US$1,995 per year) if they committed to deploying broadband in rural areas (Holmes 2018). Verizon and AT&T did not take the deal and later filed complaints with the FCC claiming they had been forced to pause 5G rollout in Lincoln on account of high fees (Dano 2018).

Citing Lincoln among other examples, wireless providers argued to the FCC that a patchwork of municipal regulations and fee schemes was “effectively prohibiting” 5G deployment, in violation of the Telecommunications Act of 1996 (Pub. Law 104-104, 110 Stat. 56). The pro-business FCC under the first Trump administration agreed. In September 2018, the FCC issued a series of orders that responded to corporations’ complaints by preempting many municipal regulations. Two of the orders banned 5G moratoria and tightened timeframes for attaching new 5G small cells to utility poles (FCC 2018a); the most contentious Small Cell Order restricted aesthetic regulations and prohibited siting fees that exceeded actual installation costs to cities, setting a presumptive cap on licensing fees at US$270⁶ per attachment (FCC 2018b). Cities voiced a range of concerns, including loss of revenue and undermining of local authority. The city of Portland, Oregon stood to lose US$9.5 million in revenue; gearing up to sue the FCC, the city's mayor called the orders “a property grab by the federal government” (Friedman 2018). Preparing their own appeal, officials in Seattle, Washington said the orders “impede[d] local authority to serve as trustees of public property and to fulfill cities’ public health and safety responsibilities” (Brodkin 2018b).

Together with Portland and Seattle, the city of San José, California, led a coalition of dozens of towns, cities, and counties to overturn the orders.⁷ San José was by then established as a pioneer in progressive 5G fee schemes (Harvey 2018). Mayor Sam Liccardo had made broadband deployment a local “smart city” priority, and to that end served as a member of the Broadband Deployment Advisory Committee (BDAC) at the FCC, before resigning in protest in early 2018.⁸ Liccardo then established a US$24 million “Digital Inclusion Fund,” using 5G siting fees negotiated with wireless providers to deliver internet to unconnected residents. In the lawsuits collected in City of Portland, Liccardo's fund was often cited as an example of creative local efforts in internet equity that the FCC's orders would jeopardize.

City of Portland thus put the question of city control over digital development, as structured by federalism and federal agency preemption, before the courts. Whereas legal accounts focus on the doctrinal elements of this case, in this section I discuss two implicit constitutional moves that accorded sovereignty over the economic dimensions of 5G rollout to the federal government while giving cities only a demoted right to enforce citizens’ preferences over the aesthetics of technology deployment.

Universal Service Trumps Local Sovereignty

The FCC's 2018 5G orders advanced a nationalist approach to internet connectivity. This was consistent with institutional arrangements established during the period of hype around the World Wide Web in the early 1990s, when Vice President Al Gore championed national investment in the “information superhighway.” Computers and the internet would be the necessities of twenty-first century life: internet access was analogized to telephone access, and owning a computer to owning a car.⁹ Yet one key problem with the internet revolution was identified early on: it could lead to a “digital divide,” a term invented to signal the political, social, and economic harms that would befall those who remained digitally unconnected (Light 2009). The term implied a linear model of development in which some people would reap the benefits of digital modernity, while those not connected would be further disadvantaged by lack of access to digital opportunities and information.¹⁰

In the ensuing decades, the digital divide remained a powerful, bipartisan, and widely invoked¹¹ tool to advocate for connecting unconnected citizens. Public officials in both parties stressed the urgency of bringing the internet to their constituents: while Republicans often emphasized rural farmers, Democrats spotlighted the urban poor. Jennifer Light critiques the digital divide construct for inviting a short-term technological fix to the underlying problem of inequality. The digital divide debate, she argues, “is based on a technologically determinist assumption that closing gaps in access to computers will mitigate broader inequalities” (Light 2009, 723). Similarly, Greene (2021, 173) has identified “access doctrine,” or the neoliberal policies focused on increasing access to new technologies and technical skills, as “an extensive project to redefine what the good life is,” converting the problem of poverty into the narrow problem of technology. My argument extends Light's and Greene's to suggest that materialist, techno-solutionist approaches to digital inequality miss the constitutional role of technology in shaping concepts of scale and distribution—like the local and the universal—which are crucial footholds for democratic subject-formation and political action.

One legislative legacy of “information superhighway” hype and “digital divide” fears was the Congressional mandate for federal agencies to support the deployment of information and communication technologies (ICTs). This mandate was encoded in the Telecommunications Act of 1996 (TCA 1996), a piece of legislation at the heart of City of Portland and the events leading to it. The TCA provided the first comprehensive telecommunications reform since the founding of the FCC in the Communications Act (CA) of 1934. The main purpose of the CA had been to centralize authority to regulate wire and radio communication through the creation of a new federal agency, the FCC. The TCA's emphasis was on securing lower prices and faster rollout by promoting competition and reducing regulation of new ICTs. The Clinton White House celebrated the TCA as progress toward the principle of “universal service,” which by the 1990s was considered the cornerstone achievement of the CA: widely available, low-cost telephone service (The White House 1996).

The idea of universal service implies the existence of a fundamental right of citizens to be connected to the internet, and a corresponding duty of sovereign states to securely connect them. In effect, the CA in the New Deal era carried out this constitutional duty by centralizing sovereignty in the federal government. But consistent with the neoliberal and deregulating thrust of US policies in the late twentieth century, the TCA sought to implement universal service and eradicate the digital divide through a decentralized marketplace of private services—which contemporaries argued would codify the digital divide instead of erasing it.¹²

While this is not the place to evaluate the overall legacy of the TCA, it has had important implications for local government involvement in internet provision. It raised the perennial question of preemption in US federalism: how should the sweeping rules of universal service be balanced against the entitlements of local government law? Section 253(a) of the TCA laid out a formal limitation on local regulations: “No State or local statute or regulation…may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service” (47 USC § 253).¹³ The FCC is authorized by the TCA to preempt any statutes that violate this rule. To test if a policy has “the effect of prohibiting,” the FCC uses the California Payphone standard, which asks whether a state or local requirement has “materially inhibited” the ability of providers “to compete in a fair and balanced regulatory environment” (FCC 1997, 14206).

In the TCA, cities are cast as potential obstacles to universal service rather than as facilitators of service provision. The courts have reinforced this interpretation by denying that municipalities are among the “entities” protected by Section 253(a), and therefore deeming it legal for states to prohibit municipalities from offering public broadband networks, as sixteen states still do. This tracks with the overall approach to local government law in US federalism where city power is a matter of state-by-state discretion. The “material inhibition” standard applied to Section 253(a) has given the FCC significant leeway to preempt local statutes that may restrict ICT deployment, over and above what states may choose to preempt. This results in varying and uncertain standards of authority across US cities.

With direct federal and state investments in city infrastructures on the decline, and rising demands for cities to innovate in order to address local problems, cities have a range of reasons to intervene on ICT deployment, but limited tools at their disposal. Section 253(c) of the TCA upheld one long-standing stronghold of city power: the authority to manage public rights-of-way, including by “requir[ing] fair and reasonable compensation from telecommunications providers” (47 U.S.C. § 253). The courts have further protected local control of land use (zoning), particularly in the pursuit of more aesthetically pleasing and less intrusive infrastructures (Floyd 2001). For example, municipalities have been permitted to require shorter cell phone towers in city parks and limit them to only those necessary to provide full coverage.

It was against the backdrop of these different precedents set in the wake of the TCA that the FCC's 2018 Small Cell Order proved so contentious. Citing Section 253(a), the FCC argued that local governments’ excessive siting fees and unreasonable aesthetic regulations were effectively prohibiting wireless companies from rapidly deploying 5G. This justified a preemption of any siting fees above a specific “safe harbor” amount. To charge a fee in excess of that amount, cities would need to prove that the fee corresponded to costs incurred in the siting process. The FCC further required that municipal aesthetic regulations be “reasonable,” “objective,” “published in advance,” and “no more burdensome than those applied to other types of infrastructure deployments” (FCC 2018b, 9132).

To justify these more stringent standards, the FCC contended that 5G was more vulnerable to effective prohibition by fees and aesthetic regulations than technologies of the past because of its dependence on the rapid and dense deployment of small cells. The orders were consistent with a federal approach to 5G that focused on updating telecom regulations for the technical and economic dimensions of 5G without attending to its political implications. Federal 5G policies—and the private firms they empowered—positioned cities as material nodes in a national technological network, not as sites of locally embedded politics—and hence as entities to be enrolled through technical system-building rather than political persuasion. FCC Chairman Pai emphasized the need to connect citizens to the digital economy, which demanded that cities allow unfettered access of private actors to the market (Brodkin 2018a).

Pai's opponents framed the issue in political rather than economic terms, arguing that the FCC was neglecting long-standing practices of good governance, including forms of local control and protections separating public from private. The FCC's only Democratic commissioner, Rosenworcel (2018) dissented in part from the orders, characterizing the Small Cell Order as “extraordinary federal overreach” carried out by “three unelected officials” in violation of a “long tradition of local control in this country.” Where Rosenworcel questioned the FCC's representative legitimacy, city officials decried the implicit authorization of private companies to adjudicate the public interest. Chief Information Officers in New York City and San José took the FCC to task for handing over taxpayer assets to private interests and undermining efforts to enforce equitable 5G rollout (Saini 2018; Santosham 2018).

Many cities took as much interest as the FCC did in using 5G to close the “digital divide,” but they did so citing different vulnerabilities and benefits. The FCC painted large urban centers as economic behemoths that “deplete carriers’ capital and force them to delay or forgo deployment” (“Brief for Respondents,” 2020, 23). Localities, by contrast, asserted their underdog position in a contest of David against Goliath—“the enormously powerful telecom providers”—and accused the FCC of taking away their only “slingshot” by preempting infrastructure fees (“Brief of the National Association of Counties,” 2021, 2). Although the FCC had constructed 5G provision as a market problem, it had simultaneously prohibited cities from participating on an equal footing with private entities in the resulting market for attachment sites. This disempowerment further narrowed the significance of the “local” to material rather than political actions. Firms seeking to profit from integrating their equipment into the physical structure of a city could do so without having to integrate themselves as corporate citizens subject to the will of the local polity.

The FCC and cities therefore presented different constitutional expectations about the forms of representation that create the conditions for citizens’ political agency. The FCC's conception of universal service imagined a universal network supporting an unfettered national market. The forms of agency to be protected were private entitlements to market participation, and in such a view, city leveraging of private assets became a form of monopoly and an obstacle to the freedom of private investment. The FCC's orders were primarily concerned with activating the physical nodes of an infrastructural system to open up a single national market and thereby elevate innovators and firms as representatives of the interests of all US citizens as consumers. But the orders neglected the ways in which those material infrastructures were dependent upon, and tightly imbricated with, political infrastructures of local governance that also required careful maintenance and attention.

Embedded in the cities’ legal challenge was the assertion of an alternative constitutional vision for cities and their citizens, whose political agency derived not from participating in a national market but from the ability to shape the provision of that market in locally meaningful ways. Cities interpreted digital inequality as a product of corporate, not municipal, practices. They described divisions as arising between well-served and underserved neighborhoods and communities, between capital-rich places that companies saw fit to serve and those that they did not, with the unacceptable downstream consequence of allowing private rather than public entities to dictate the provision of vital public services. Defending their role as managers of the right-of-way, cities argued that they were best positioned to protect the interests of local collectives against the financial might, and possible political tyranny, of big private actors, and to insist that those private actors be subject to forms of local accountability. In undermining their authority to do so, the FCC was avowedly undermining the sovereignty of city publics over key distributional problems in urban life.

Parsing the 5G Problem: Local Aesthetics and National Economics

The Ninth Circuit's decision in City of Portland, penned by judge Mary Schroeder, upheld all aspects of the FCC orders except for two of the Small Cell Order's restrictions on aesthetic regulations—the “objective” and “no more burdensome” standards. Daniel Bress, a Trump-appointed judge, wrote a partial dissent arguing that the FCC had not provided sufficient evidence to justify its cost-based restriction of siting fees. The FCC celebrated the decision as a victory, and media and legal analysts declared the decision a win for the telecommunications industry (Brodkin 2020; Brown et al. 2020).¹⁴ In its decision, the Ninth Circuit applied “Chevron deference” (467 US 837 [1984]), which until 2024¹⁵ was the standard by which courts dealt with questions of “ambiguity” about congressional intent in administrative law. Under Chevron, if a statute's wording was ambiguous, and an agency's interpretation of that language was reasonable, then courts should defer to the agency's interpretation. Where the Ninth Circuit deferred to the FCC's justification for fee caps and chose not to delve into the contrary bodies of economic evidence presented, it did so following Chevron.

Yet Chevron alone does not explain how the court justified its deference to the FCC in City of Portland. Taking a wider view, the court's reasoning was consistent with US judicial practices in the regulation of science and technology in other areas, including environmental protection and intellectual property law, which have been characterized by deference not only to federal agencies but also to arguments that accept technological determinism and the virtues of innovation (Jasanoff 2012). The Ninth Circuit accepted the FCC's argument that the material nature of 5G rendered it more vulnerable to effective prohibition: “the differences in the FCC's new approach are…reasonably explained by the differences in 5G technology” (City of Portland 969 F.3d at 1035). In this judgment, technology leads, and law follows. This has elsewhere been expressed as the idea that innovation is an unstoppable force, and that the courts may as well bow to inevitability.¹⁶

While the Ninth Circuit's decision may be unsurprising in the light of these precedents, it made subtle moves that further exemplified a narrow conception of citizens’ entitlements to govern technological development at the city scale. The application of Chevron in City of Portland hinged on whether the FCC had reasonably applied the California Payphone standard of “effective prohibition” as “material inhibition.” During oral argument, the lawyer for the cities argued that the FCC was departing from this standard:

They literally define “materially inhibit” [to mean] we [the cities] prevent the operator from putting in facilities of the type it wants, with the functional characteristics it wants, in the time it wants—so essentially, we’re prohibiting if we put a burden on the operator doing what it wants. And that can’t possibly be squared with the intent of the law, which every court has recognized is intended to preserve zoning authority and allow us to say “no” sometimes. (US Court of Appeals 2020)

In this view, the court's deference to the FCC would effectively deny cities’ policy autonomy and instead enforce municipal deference to private sector preferences. Cities therefore presented the court with a question about the implications of US federalism for the enactment of technological change at different scales. Was the American city to be merely a material node to be incorporated as a design feature in nation-wide networks of development or as a site of community decision-making about local development? The Ninth Circuit resolved this tension by performing a subtle constitutional move to differentiate the 5G problem—and with it, local political agency—along aesthetic versus economic lines.

When the court unanimously struck down the FCC's “objective” and “no more burdensome” standards¹⁷ and thereby protected some legitimate aesthetic grounds for local sovereignty, it did so partly through an asymmetrical treatment of the economics and the aesthetics of the 5G problem. This asymmetry was, I argue, reflective of tacit constitutional thinking (with a “small c”): it reflected de facto “separation of powers,” an underlying commitment that was not formally encoded in law but that nonetheless served to legitimize the court's decision. The court made a commonsense critique of the FCC's approach to aesthetic concerns while deferring under Chevron to the FCC's approach to economic concerns. The cities, too, fell victim to this asymmetry in the way they argued their case. By criticizing the economic argument behind the FCC's fee caps, cities allowed the court to seek recourse in Chevron, and thereby to affirm that economic considerations were illegitimate grounds for asserting local sovereignty. A closer look at the court's contrasting modes of reasoning over the aesthetic and economic dimensions of 5G illustrates this.

Cities, the FCC, and the court agreed that the aesthetic regulation of small cells should aim to prevent the “intangible public harm of unsightly or out-of-character deployments” (City of Portland 969 F.3d at 1042). Cities contended that among these “real” harms were threats to historical sites and to cities’ financial investments in the look and feel of neighborhoods, investments which are “essential to local economies” (“Petitioner Local Governments’ Brief,” 2020, 92). During oral argument, the Ninth Circuit judges took particular interest in these concerns. Pushing the FCC's lawyer, Judge Bress asked whether the FCC's orders were able to accommodate “very unique, localized settings” (US Court of Appeals 2020). Judge Schroeder asked for clarification about how an “objective” criterion could be imposed on unique aesthetic practices, like disguising wireless poles as cacti in her home state of Arizona.

In its decision, the court expressed “considerable doubt” that “malleable and open-ended” aesthetic criteria would have the effect of prohibiting 5G service (City of Portland 969 F.3d at 1042). Referencing an earlier Ninth Circuit decision (543 F.3d 571 [2008]) about zoning in Sprint v. County of San Diego, the court laid out what amounted to an argument for limited deference to localities:

In Sprint, we recognized…that while “[i]t is certainly true that a zoning board could exercise its discretion to effectively prohibit” service, “it is equally true (and more likely) that zoning board would exercise its discretion only to balance the competing goals of an ordinance,” including “valid public goals such as safety and aesthetics.” The FCC's position that all subjective aesthetic regulations constitute a per se material inhibition must therefore be viewed with considerable skepticism.

The Ninth Circuit cited Sprint to suggest that localities should be trusted to balance competing public goals without prohibiting service, noting that that the aesthetic problems being addressed were “necessarily subjective” (City of Portland 969 F.3d at 1042).

In a parallel case that challenged the FCC's 5G rules on different grounds, plaintiffs also successfully argued that 5G small cells were more of a physical and aesthetic disturbance than carriers had portrayed. In that case, the court decided that 5G small cells were subject to historic preservation rules and obtrusive enough to require environmental impact review, contradicting FCC rulings (Mims 2019). Claims to the aesthetic disturbances of 5G have their limits in court.¹⁸ But in City of Portland the court accepted the cities’ claim that material intrusion of small cells into the local environment was significant enough to demand protective municipal policies. The court took issue with how the FCC's prohibitions targeted “regulations focused on legitimate local objectives, such as ordinances requiring installations to conform to the character of the neighborhood” (City of Portland 969 F.3d at 1042). The principle of protecting neighborhood/community “character” (often defined as “identity” or “personality”) is part of many local zoning and environmental assessment practices.¹⁹ It is also known in local politics as a concept that can be advanced to serve a number of ends with implications far beyond aesthetics, including to prevent the construction of new housing.²⁰ Therefore in upholding this established norm of local political reasoning, the court embraced a commonsense understanding of local politics as politics fought in the register of aesthetic and environmental impacts.

Economic intrusions, however, received a different treatment. Cities contested the FCC's fee caps on grounds of faulty economic logic and insufficient evidence for claims that fees above costs would prohibit service. The only study that the FCC had cited to support its fee caps was the so-called Corning Study, authored by two employees at CMA Strategy Consultants, and published for use by the FCC without peer review.²¹ The authors showed that US$2 billion in possible cost savings achieved by the FCC's fee caps “could lead to an additional $2.4 billion in capital expenditure due to additional neighborhoods moving from being economically unviable to becoming economically viable” (Naef and Sachs 2018, 2). The study further claimed that the vast majority of savings would go to rural and suburban areas, which the FCC regarded as areas that “otherwise would be on the wrong side of the digital divide” (FCC 2018b, 9091). Cities argued that there was nothing in the FCC's orders that required wireless operators to reinvest their savings in underserved or rural areas. Municipal fee schemes based on property value rather than costs, they claimed, were often intended to promote deployment by offering lower rates in underserved areas and using any profits to help close the digital divide, as in San José (“Petitioner Local Governments’ Brief,” 2020, 21).

The Ninth Circuit majority decision engaged only superficially with the Corning Study, affirming its status as expert evidence, calling it an “academic study” by a “group of economists” (City of Portland 969 F.3d at 1039). Consistent with Chevron, the court refused to consider the cities’ argument that the FCC's justification for fee caps was economically unreasonable. One exchange between the judges and the lawyer for the cities illustrates the court's position:

Judge Jay Bybee: It's not irrational to think that if LA is charging $1,000 per pole that there isn’t money to go to Fresno.

Plaintiff: Well it actually is a little bit irrational in this sense. One of the reasons that people will pay more to be in New York or in Los Angeles is because they can make more money. You can’t just look at costs divorced from revenues. That's a basic economic principle….The idea that in a competitive market if you spend more to go to a place that's more valuable, that somehow prevents you from going somewhere else, seems to me a little bit of a stretch.

Judge Schroeder: You’re saying that you don’t agree with their economic theory. Can we say that? [gestures toward herself] (US Court of Appeals 2020)

Schroeder's question—“Can we say that?”—signals an appellate court's incapacity to resolve expert disputes, as well as its inability under Chevron to take a position between different reasonable or “not irrational” interpretations of the law. By choosing to contest the substance of the Corning Study's factual claims, cities tied themselves to an epistemic framing of the economic question rather than a normative one, thereby opening the door to the FCC's Chevron defense.²² By contrast, the court discussed 5G's aesthetics in normative terms, identifying neighborhood character as an important domain of local jurisdiction and trusting localities to govern reasonably in this domain. The court did not consider that economic concerns about 5G might similarly inhere in “very unique, localized settings,” or that localities were “more likely” than the FCC to be as reasonable in balancing local distributional concerns as they were with aesthetic ones.

The approach to economics that won the day accords with broader US commitments to citizenship as consumerism, and to unlocking the economic potential of property. Sunder Rajan (2011, 202) has shown that the US approach to biomedical marketization converts patients into consumers, granting them “free” choice in the market but not over “whether to be configured as [consumers] in the first place.” Similarly, the FCC viewed 5G technology as an American economic achievement designed to benefit all Americans as consumers in the national and transnational marketplace. Cities were more concerned with identities and achievements that cohere at a local scale, and forms of political agency that allow citizens to address political questions about local economic and social challenges. However, by focusing on a substantive objection to the FCC's economic argument, cities failed to establish to the court's satisfaction that the FCC fee caps would harm local investments in desirable economic conditions and diminish citizens’ political agency over private firms. This aligns with the way that US courts have consistently valued economic development as desirable because it extracts value from otherwise inert material, renders it mobile, and contributes to the circulation of benefits while seeing aesthetic or ethical values as remaining “bound up in the land” (Jasanoff 2012, 157).

The court failed to incorporate an understanding of economic development as similarly place-bound in favoring some forms of public good over others, deferring instead to the FCC's idea of universal provision enacted through unfettered private markets. In neglecting the importance of local political power over the economic impacts of urban infrastructural transformations, the courts and the FCC narrowed the space of citizens’ legitimate political interests in local technology deployment to discourses of aesthetic preference. In doing so, they undermined the spirit of local experimentalism that has animated American federalism at its best.

Conclusion

While the digital divide has justified rapid deployment initiatives like the “race to 5G,” I have argued here for attending to the tacit constitutions being constructed (or neglected) through such material projects of digital connectivity. Today's imaginations of frictionless 5G connectivity risk disregarding the frictions of progress “on the ground,” frictions no less real than the displacement of preexisting communities and ecologies by Gast's vision of American progress. In the United States, the city reveals itself as a particularly interesting site at which to decipher the constitutional issues raised by technology deployment due to the role of cities in structuring the dynamics of political citizenship. In this respect, City of Portland, though a US-based case, also addresses broader questions about the constitutional position of cities and citizens in an age of rapid global urbanization. It reveals that any project of empowering cities by making them “smart” will have to contend with underlying questions of sovereignty and agency in technological decision-making.

In bringing such constitutional issues to light, this article has centered three interrelated institutions—cities, national executive agencies, and the courts—each of which serves as a site where constitutional infrastructures for the governance of technology are enacted and redefined. The decision in City of Portland rejected the implicit constitutional assertion of a right to maintain “the city” as an independent site of citizens’ political agency in the economic governance of technology at urban scale. The reasoning that carried the day restricted the power of localities to distribute the benefits of material infrastructure by relying on two interrelated constitutional separations—local versus national, and aesthetic versus economic. These moves diminished the economic agency of city governments and limited the means by which providers seeking physical attachments to a city could be made to accept corresponding duties and obligations to its residents. Taking refuge in Chevron, the court deferred to the FCC's framing of 5G siting fees as illegitimate monopolistic practices that threatened consumer access to a nationwide 5G market, rather than as a legitimate assertion of political sovereignty by an urban polity serving its own interests.

In a recent pair of high-profile Supreme Court cases, Chevron deference was controversially struck down.¹³ Right-wing efforts to dismantle Chevron sought to prevent liberal courts and agencies from usurping Congressional power, as they saw it, through deference to expertise. But City of Portland serves as a reminder that conservative political projects are just as compatible with the consolidation of federal power. More importantly, it shows that the US judicial imagination—no matter the status of Chevron—is poised to support that consolidation when it is directed toward making national markets to advance economic growth and international security and competitiveness, even at the expense of local imaginaries of equity and fairness. The recent dismantling of US administrative discretion will not resolve more fundamental conflicts between ideas about the right forms of capitalism to guide digital development.

In this case, the Ninth Circuit sought to preserve deference to local voices through the commonsense assumption that localities should be trusted to govern concerns tied to local “character.” But in an age where digital innovations are poised to transform all aspects of urban citizenship—including how citizens interact with their governments, and how private firms shape and constrain economic, political, and social outcomes and behavior—the protection of a city's overall political interests cannot rest on the limited criterion of local character.

Instead, we need to build into our political and legal systems the constitutional infrastructures necessary for citizens to realize local political agency over the distributional terms and effects of progress. Such infrastructures could enshrine the right to forms of democratic self-expression vis à vis transformative technologies, for example by providing the legal foundation for arrangements through which citizens could hold the development and deployment of urban infrastructure to locally meaningful norms. But democratic systems must also enshrine deeper legal and institutional understanding of technology as a site of vital politics across scales. Cities, as the locus of day-to-day living for the majority of people in the United States, can only serve as strongholds for the governance of digital transformations if they are buttressed by a political ecosystem that deliberately fosters a diversity of imaginaries of technological and political progress.

Footnotes

Acknowledgments

Thank you to the anonymous referees and editors for their valuable inputs to the manuscript. The Safra Center for Ethics at Harvard provided the financial support to complete the write-up of this article, as well as the opportunity to receive feedback from a generous group of graduate fellows and faculty. The ideas for this article were incubated over years of conversation with the academic community in the Program on Science, Technology and Society (STS) at Harvard Kennedy School. Above all, this piece would never have seen the light of day without tireless mentorship and encouragement from Sheila Jasanoff, director of the STS Program and my doctoral advisor, whose dedication to her students and to the field is a daily inspiration to me. Finally, thank you to William Bassoff for picking up many late-night phone calls to contemplate local government law with me.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Harvard Safra Center for Ethics.

ORCID iD

Nicole W. Bassoff

Notes

Author Biography

Nicole W. Bassoff is a PhD candidate in Public Policy at the Harvard Kennedy School, where she is a fellow in the Program on Science, Technology and Society (STS) and co-founder of the Graduate Research in STS (GRiSTS) Conference. Her doctoral research concerns the politics of digital development at the urban scale.

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