Keane & Beane, P.C. has provided several Legal Alerts on the Federal Communications Commission’s (the “FCC”) Declaratory Report and Third Report and Order (the “Wireless Infrastructure Order”), adopted September 26, 2018. Part 1 provides a general overview of the Wireless Telecommunication Order; Part 2 discusses the impacts to state and local government regulation of the placement, construction and modification of Small Cell Wireless Facilities rules; and Part 3 addresses the new shot clock rules governing the review of wireless infrastructure order. This Legal Alert focuses on the FCC’s requirements for local and state aesthetic regulations in connection with small cell wireless facility deployments. It is most important to note that the Wireless Infrastructure Order clearly sets forth an April 15, 2019 deadline for local governments to publish aesthetic regulations applicable to small cell facilities. This legal alert describes what regulations may be deemed appropriate to help guide municipalities to adopt legal policies. Based on the provisions of Sections 253(a) and 332(c)(7)(B) of the Federal Telecommunications Act of 1996 (the “Act”), Congress has determined state and local government requirements that prohibit or have the effect of prohibiting wireless telecommunication services are unlawful. In the Wireless Infrastructure Order, the FCC states that local non-fee regulations, including aesthetic regulations, often operate as prohibitions on wireless telecommunication services. However, the Wireless Infrastructure does state that certain aesthetic considerations do not run afoul of Sections 253 or 332 of the Act as long as such considerations are reasonable and applied fairly to all wireless telecommunication services providers.
Section 253 of the Act contains some safe harbors protecting the rights of states and local governments to regulate wireless telecommunication facilities. Specifically, Section 253(b) reserves states’ rights to adopt regulations “to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights of consumers.” Section 253(c) further preserves state and local authority to manage the public rights-of-way.
In the Wireless Infrastructure Order, the FCC concluded that aesthetics requirements are not preempted if they are (1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments, and (3) objective and published in advance.
The FCC considers aesthetic requirements to be reasonable if such requirements are technically feasible and reasonably directed to avoid or mitigate public harm of unsightly or out-of-character deployments. Aesthetic requirements that are more burdensome to similarly situated wireless infrastructure deployments are not permissible. The FCC believes that such discriminatory application demonstrates that the requirements are not reasonable and not directed at remedying the impact of the wireless infrastructure deployment.
Furthermore, aesthetic requirements may not materially inhibit deployment of wireless infrastructure. For example, a minimum spacing requirement that has the effect of materially inhibiting wireless service would be considered an effective prohibition of service. The FCC is concerned that spacing requirements may prevent a provider from replacing its preexisting facilities or collocating new equipment on a structure already in use. Such a regulation would violate Sections 253 and 332. Similarly, a requirement that all wireless facilities be deployed underground would also amount to an effective prohibition given the propagation characteristics of wireless signals. Small cell wireless facilities cannot operate underground. Aesthetic regulations adopted by local governments must incorporate clearly-defined and ascertainable standards. Aesthetic requirements must be objective and designed to provide a public benefit or mitigate public harm. States and local governments have the right to adopt aesthetic restrictions and requirements to ensure the appearance of the small cell structure is compatible with nearby land use, to ensure traffic or pedestrian safety or protect the historic integrity of an area. However, under the Wireless Infrastructure Order, states and local governments must publish their aesthetic regulation by April 15, 2019.
Aesthetic regulations published in advance need not prescribe in detail every specification to be mandated for each type of structure in each individual neighborhood. Localities need only set forth the objective standards and criteria that will be applied in a principled manner at a sufficiently clear level of detail as to enable providers to design and propose their deployments in a manner that complies with those standards.
The Federal Government cannot prohibit municipalities from adopting local laws which set forth aesthetic regulations for small cell facilities now or in the future. However, municipalities that fail to act by April 15, will be required to review a small cell application under the relevant provisions of its municipal code that exist at the time a provider submits its application. After April 15, 2019, municipalities will be unable to delay review of small cell facility applications to consider and adopt aesthetic requirements for such facilities. Therefore, local governments should begin to update their municipal codes to specifically regulate small cell facilities and set forth aesthetic controls. We believe municipalities will greatly benefit by being proactive and adopting small cell regulations prior to April 15.
Keane & Beane, P.C. continues to review the Wireless Infrastructure Order and its impact on local government regulation of Small Wireless Facilities. Our office will continue to provide Legal Alerts on different aspects of the Wireless Infrastructure Order and updates on pending litigation challenging the Wireless Infrastructure Order. Should you have any questions, please contact Nicholas M. Ward-Willis.
