FCC Limits Local Control for Deployment of 5G Network
Pursuant to the Telecommunications Act of 1996, 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 infrastructure. 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. The FCC’s goal to streamline rollout of 5G technology which conflicts with municipalities’ assertion of local control over its rights-of-way.
IMPACTING MUNICIPAL AUTHORITY
The Order focuses on facilitating the installation of “Small Wireless Facilities” necessary to densify wireless networks for 5G services. The legal challenges already commenced against the Order shows 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 some leverage with service providers and address important community issues, such as design of antennae attachments, location and even spacing.
The Order establishes guidelines for presumptively valid local fees that municipalities typically charge that comply with Sections 253 and 332. Higher fees are authorized, but require documentation and the locality must show 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. The presumptively reasonable fees under Section 253 or Section 332(c)(7) are:
- $500 for a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five,
- $1,000 fee for a new pole (i.e., not a collocation) intended to support one or more Small Wireless Facilities, and
- $270 per Small Wireless Facility per year for all recurring fees, including any possible right-of-way access fee or fee for attachment to municipally-owned structures in the right-of-way.
Municipalities are rightfully concerned with the aesthetics of their municipality. Given the anticipated number of 5G facilities to be deployed in local communities in the near future, municipalities may need to act quickly to protect its residents and streetscapes.
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.
For example, municipalities could develop standardized aesthetic requirements, such as pre-approved antennae, equipment cabinets, spacing requirements and street furniture designs (colors, locations), where appropriate and include them in rights-of-way use and access agreements or laws. This action might help prevent unsightly and/or out of character future 5G deployments, as well as standardize the review process and protect the locality from potential shot clock violations.
NEW SHOT CLOCKS
The FCC established 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:
- 60 days for review of an application for collocation of a small cell on a preexisting structure, and
- 90 days for review of an application for attachment of a small cell using a new structure.
The FCC Order contains a new “modified tolling system” that will “restart” the shot clock if the municipality, within 10 days from the submission of the application, determines whether the application is incomplete and the information is provided.
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. If the necessary permits are not issued, according to the FCC, the service provider would have a "straightforward case" for obtaining expedited judicial relief.
WHAT SHOULD A MUNICIPALITY DO?
Deployment of 5G technology is coming to municipal rights-of-way. Reasonable steps might be taken now include enacting reasonable zoning, and other regulations, to address community aesthetic concerns, such as antennae design, location, spacing, and existing and new pole and equipment aesthetic requirements. Close consultation with legal counsel and other professionals for assistance should be considered.
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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 before acting or relying upon any information in this article.