Nov. 08, 2018

FCC Limits Local Control for Deployment of 5G Network

BACKGROUND

On September 26, 2018, the Federal Communications Commission issued a Declaratory Ruling and Third Report and Order (the Order) that preempts certain state and local regulatory authority claiming that existing local regulations hinder the deployment of 5G infrastructures.  The Order was published in the Federal Register on October 15, 2018 and becomes effective on January 14, 2019.  Local rules concerning aesthetic concerns must be publicly available 90 days later.  Several localities on the west coast have already commenced appeals to challenge the FCC’s action claiming, among other things, that Order amount to a federal overreach.  The FCC’s goal to streamline a fast rollout of 5G technology appears directly at odds with municipalities claims that they should retain authority to set standards and fees for such equipment being placed in public rights-of-way.

IMPACTING MUNICIPAL AUTHORITY

The Order has two parts:

1) new regulations that govern “shot clocks” and other aspects of the deployment of small wireless facilities, and

2) a Declaratory Ruling, which clarifies the FCC’s interpretation how the provisions of Section 253 and 332(c)(7) Telecommunications Act of 1996, which limit state and local regulations that prohibit or have the effect of prohibiting the provision of wireless services, should be applied. In each of these Sections, Congress circumscribed state and local legal requirements that may affect the deployment of telecommunications services.

The Order focuses on facilitating the installation of “Small Wireless Facilities” necessary to densify wireless networks for 5G services. As noted by the challenges already commenced against the Order, local governments are concerned that the Order will compromise their ability to maintain and ensure the safety of the public rights of way.

The Order provides that municipalities retain with some limited, yet significant, power to enact regulations. This may help localities maintain leverage with service providers and address important community issues, such as antennae design, location, and spacing. 

FEE LIMITATIONS

The Order establishes guidelines for various local fees that municipalities typically charge that presumptively comply with Sections 253 and 332. Municipalities object, it has been reported, that these nationally uniform fees are not realistic and do not take into account the varying municipal costs across the country.   Municipal costs typically include staff time to review the application(s), use of the right-of-way and costs associated with maintaining the right-of-way and structures within the right-of-way where such Small Wireless Facilities will be attached. The Order establishes a presumptively valid fee schedule for these costs.

Can a municipality charge a higher fee? Perhaps in limited circumstances, a locality may charge fees that are above the federal authorized fee levels by showing that such fees comply with the limits imposed by Section 253—specifically, that they are (1) a reasonable approximation of the municipality’s costs and competitively neutral, (2) those costs themselves are reasonable, and (3) are non-discriminatory, i.e. fees can be no higher than the fees charged to similarly situated competitors in similar situations. However, such fees charged above the FCC’s presumptively valid fees must be very carefully considered, or a service provider could commence an action challenging them.

AESTHETICS

Cities, towns and villages are concerned with the aesthetics of their municipality. Given the anticipated huge number of 5G facilities to be deployed in local communities in the near future, it appears incumbent on municipalities to act quickly to protect its residents and streetscapes, while balancing the need to obtain the best services for its residents.

The FCC Order provides guidance to municipalities concerning aesthetic requirements that will not be preempted provided they are (1) reasonable, (2) non-discriminatory, no more burdensome than those applied to other types of infrastructure deployments and (3) published in advance.

It may behoove municipalities to develop standardized aesthetic requirements, such as pre-approved antennae, equipment cabinets, spacing requirements, and street furniture designs (colors, locations), where appropriate. This would assist in avoiding unsightly or out of character future deployments. It would also help make it easier for localities to process applications reasonably expeditiously and defend challenges to their siting decisions for failure to meet shot clock deadlines, as discussed below.

NEW SHOT CLOCKS

The FCC established two new shot clocks that apply to “all authorizations necessary for the deployment of personal wireless services infrastructure, including building permits and road opening permits” by local governments on an application to deploy a small cell:

  1. 60 days for review of an application for collocation of a small cell on a preexisting structure, and
  2. 90 days for review of an application for attachment of a small cell using a new structure.



Failure to meet these deadlines results in a presumption that a municipality has not acted in a reasonable period of time, and will be deemed a presumptive prohibition on the provision of personal wireless services, per Section 332, and subjects the municipality to potential litigation with the service provider. The FCC stated it would expect that, upon notifying the local authorities of the expiration of the shot clock, the service provider would be issued the necessary permits "absent extraordinary circumstances." If the necessary permits are not issued, according to the FCC, the service provider would have a "straightforward case" for obtaining expedited judicial relief.

In an apparent nod to municipal objections, the FCC changed the language in the original Order to provide for a new “modified tolling system” which will “restart” the shot clock in certain circumstances. The modified tolling system is intended to ensure that the service providers submit complete applications at the beginning of the review process. For Small Wireless Facilities applications, the municipality has 10 days from the submission of the application to determine whether the application is incomplete. The shot clock then resets once the applicant submits the supplemental information requested by the siting authority. Effectively, the municipality would have 60 additional days for review.

WHAT SHOULD A MUNICIPALITY DO?

Municipalities are in the crosshairs under the FCC’s Order and should prepare for a possible onslaught of applications from service providers seeking to deploy 5G technologies within localities, primarily within municipal rights-of-way, and backed by the FCC.

Municipalities should then take immediate steps to enact reasonable zoning and other regulations to address important community issues.

Such regulations might include antennae design, location spacing, additional pole, and equipment aesthetic requirements.

This will help the locality to maintain some leverage in possible negotiations with service providers.

Please do not hesitate to contact Thomas A. Shepardson, Esq. for additional information at 518-487-7663 or tshepardson@woh.com.


This update is intended to be a general summary of the law and does not constitute legal advice. If you have concerns about the impact and effect on your municipality, you should consult with counsel to determine applicable legal requirements for a specific factual situation.