On September 5, 2018, the Federal Communications Commission (“FCC”) issued a Declaratory Ruling and Third Report and Order. This document is part of a national strategy to promote the timely build-out of small cell wireless telecommunication facilities (“small cell facilities”) across the country by eliminating what the FCC and the industry perceive to be regulatory impediments that unnecessarily add delays and costs to the deployment of small cell facilities. Providers are rapidly installing small cell infrastructure at significantly more locations to meet the increasing demand for wireless services and prepare for 5G technology. The FCC is expected to vote on the Report and Order on September 26, 2018.
According to the FCC, the Declaratory Ruling and Third Report will:
- Clarify the scope and meaning of the effective prohibition standard set forth in Sections 253 and 332(c)(7) of the Communications Act as they apply to state and local regulation of wireless infrastructure deployment.
- Conclude that Sections 253 and 332(c)(7) limit state and local governments to charging fees that are no greater than a reasonable approximation of their costs for processing applications and for managing deployments in the rights-of-way.
- Identify specific fee levels for small wireless facility deployments that presumably comply with the relevant standard.
- Provide guidance on certain state and local non-fee requirements, including aesthetic and undergrounding requirements.
- Establish two new shot clocks for small wireless facilities (60 days for collocation on preexisting structures and 90 days for new builds) and codify the existing 90 and 150 day shot clocks for non-small wireless facility deployments that were established in the 2009 Declaratory Ruling.
- Make clear that all state and local government authorizations necessary for the deployment of personal wireless service infrastructure are subject to those shot clocks.
- Conclude that a failure to act within the new small wireless facility shot clock constitutes a presumptive prohibition on the provision of services. Accordingly, we would expect local governments to provide all required authorizations without further delay.
A link to the full report can be found at: https://docs.fcc.gov/public/attachments/DOC-353962A1.pdf
Keane & Beane is still reviewing the Declaratory Ruling and Third Report and its impact on local government regulation of small cell facilities. Our office will provide further review and analysis.
Should you have any questions, please contact Nicholas M. Ward-Willis.