At its September 26, 2018 meeting, the Federal Communications Commission (the “FCC”) considered and approved the Declaratory Ruling and Third Report and Order which: (1) clarifies the scope and meaning of Sections 253 and 332(c)(7) of the Communications Act, (2) establishes shot clocks for state and local approvals for the deployment of small wireless facilities, and (3) provides guidance on streamlining state and local requirements on wireless infrastructure deployment. (WT Docket No. 17-79; WC Docket No. 17-84)(the “Wireless Infrastructure Order”). The impact of this action will make it easier for telecommunication providers to install 5G technology and will narrow the scope of a local government’s review, the timing of such review and its ability to regulate placement of these facilities, as well as limits the amount of fees a municipality can charge for locating small cell facilities within the Right of Way. Keane & Beane’s prior Legal Alert, which provides additional background information on the Declaratory Ruling and Third Report and Order, is available at: Click Here. The FCC’s Final Rule is attached at the end of this Legal Alert.
During the meeting, Commissioner Michael O’Rielly noted that the provisions set forth in the Wireless Infrastructure Order will help facilitate the deployment of 5G technology and enable providers to expand services throughout the Country with the ultimate beneficiaries being the American people. The Order is clearly designed to advance the installation of 5G technology at a rapid pace and remove what are perceived to be governmental roadblocks.
The Commissioners acknowledged the FCC will need to adopt additional guidance and rules in the future to further clarify aspects of the Wireless Infrastructure Order, including provisions regarding an applicant’s right to challenge fees and provisions to establish procedures and objective standards municipalities can rely on to obtain additional time to review an application.
A “SHOT CLOCK” FOR SMALL CELLS
The Final Rule, included in the Wireless Infrastructure Order as Appendix A, adds subpart U to Part 1 of Title 47 of the Code of Federal Regulations. The Final Rule defines thirteen (13) new terms, including “small wireless facility.” Small wireless facility is defined as a facility that meets each of the following conditions:
- The structure on which antenna facilities are mounted—
- (i) is 50 feet or less in height, or
- (ii) is no more than 10 percent taller than other adjacent structures, or
- (iii) is not extended to a height of more than 10 percent above its preexisting height as a result of the collocation of new antenna facilities; and
- Each antenna (excluding associated antenna equipment) is no more than three cubic feet in volume; and
- All antenna equipment associated with the facility (excluding antennas) are cumulatively no more than 28 cubic feet in volume; and
- The facility does not require antenna structure registration under part 17 of this chapter; and
- The facility is not located on Tribal lands, as defined under 36 C.F.R. § 800.16(x); and
- The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in Rule 1.1307(b).
The Final Rule specifically requires states and local governments, or siting authorities, to act on a siting application within a reasonable period of time. Siting authorities must approve or deny an application within the following presumptively reasonable periods of time, known as shot clock periods:
- 60 days to approve the collation of small wireless facilities;
- 90 days to approve collocation of facilities other than small wireless facilities;
- 90 days to approve the construction of new small wireless facilities; and
- 150 days to approve construction of new facilities other than small wireless facilities.
The FCC previously advised in its 2009 Declaratory Ruling that state and local authorities should ordinarily take no more than 90 days to act on wireless collocation applications and 150 days to act on all other wireless siting applications. The new rule codifies the 2009 Ruling which municipalities are familiar with when reviewing the traditional cell towers and establishes two new shot clocks for small wireless facilities.
The Final Rule also includes regulations related to batching, where a single application seeks authorization for multiple deployments, and tolling periods.
In the Wireless Infrastructure Order, the FCC advised that right-of-way access fees, and fees for the use of governmental property in the right-of-way, as well as application or review fees and similar fees imposed by a state or local government as part of their regulation of deployment of small wireless facilities inside and outside the right-of-way, violate Sections 253 and 333(c)(7) unless the following conditions are met: (1) the fees are reasonable approximation of the state or local government’s costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated competitions in similar situations. Costs must be specifically related to and caused by the deployment of small wireless facilities. Such costs include, but are not limited to, processing applications or permits, maintaining the right-of-way and maintaining a structure within the right-of-way.
In the Wireless Infrastructure Order, the FCC provides guidance on deployment restrictions based on aesthetics or similar factors. The FCC found that aesthetic requirements for small cell facilities are not preempted if such requirements are: (1) reasonable; (2) no more burdensome than those that apply to other types of infrastructure; and (3) published in advanced. Such requirements are considered reasonable if they are reasonably imposed to avoid or remedy the intangible public harm of unsightly or out-of-character deployments.
Impacts on state and local governmentS
Not all the Commissioners of the FCC agreed with the benefits of the Wireless Infrastructure Order. Specifically, Commissioner Jessica Rosenworcel expressed disapproval of the requirements limiting state and local government fees and the guidance set forth which limits a localities right to restrict infrastructure based on aesthetics or similar factors. Commissioner Rosenworcel believes that these provisions were introduced with complete disregard to the different infrastructure approval processes that exist throughout the county, and that adoption of such rules is an overstep of the FCC’s authority. She also expressed concern that these provisions may impact exiting agreements and ongoing deployment of small cell infrastructure across the county.
While the impending 5G technology will literally change the landscape of many municipalities, the Wireless Infrastructure Order changes the landscape of what and how a local government can regulate small cell technology. While the FCC hopes the Wireless Infrastructure Order will provide clear and updated guidance, which will eliminate the uncertainty inspiring so much litigation, the severe limitations on a municipality’s review authority may well result in litigation seeking to challenge the validity and scope of the Order. Our office will continue to review the Declaratory Ruling and Third Report and Order to provide detailed reviews on the requirements imposed and standards set forth therein. Future alerts will specifically address the new shot clock requirements, regulations on fees, and limitations on other state and local requirements, such as aesthetics, that govern small cell infrastructure.
Should you have any questions, please contact Nicholas M. Ward-Willis.