In a much ballyhooed action on September 26, the Federal Communications Commission (“FCC” or “Commission”) took another stride in its effort to clear away regulatory and administrative obstacles to 5G cell site construction via the issuance of a Declaratory Ruling and Third Report and Order in a proceeding titled “In the Matter of Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment.” Commissioner Brendan Carr has been spearheading the initiative at the FCC to respond to industry complaints that tribal fees, historical/tribal review processes, and municipal processing fees and permitting delays have been dramatically and needlessly increasing the time and cost of installing 5G micro-sites. The FCC estimates that hundreds of thousands of these small cells will have to be built in the next five years to implement the infrastructure necessary to deliver super high speed, super high bandwidth service at millimeter wave frequencies that are only effective over short distances. The cellular industry has been chafing under the burdensome regulatory regime for cell site construction that might make sense for traditional tall cell towers but makes no sense at all for the 50 foot or shorter structures and add-ons to existing buildings that will constitute the majority of 5G installations.
The FCC already had largely eliminated tribal reviews for towers of 50 foot or less, and eliminated tribal fees for all towers. It also reduced the regulatory burdens on small cells which could have little or no impact on historical, tribal or environmental values. The toughest nut to crack was the obstinacy of counties and municipalities who have insisted on lengthy (and expensive) processes to review – and sometimes obstruct – applications to construct or install small cells. The Commission’s September Order took that bull directly by the horns.
The FCC adopted a somewhat expansive interpretation of its powers under the Communications Act to pre-empt non-Federal regulations that “prohibit or have the effect of prohibiting” the provision of telecommunications service. (The Act actually addresses this prohibition only in connection with “personal wireless services” – a specific subset of wireless communications – but the FCC has deemed that provision to apply to all wireless services.) The FCC had previously established “shot clocks” for action by local authorities in reviewing cell construction permit applications. Those shot clocks have proven ineffective. The Commission has now confirmed that “materially inhibiting” wireless service is tantamount to “prohibiting” such service and therefore falls within the FCC’s jurisdiction to prevent. The FCC accordingly has now declared:
- Fees charged by local authorities for small cell permit applications must be based on the actual costs of the review process.
- Such fees must be non-discriminatory among applicants, thus discouraging favoritism for one (often local) firm over others. Fees are not supposed to be general revenue centers for local authorities.
- Specific fee levels for small cell deployments were established to set a presumptive level of reasonableness, thus forestalling at least some of the inevitable bickering about what is reasonable. The thresholds are: $500 for a single application including up to five small wireless facilities, plus an extra $100 for each additional such facility; $1,000 for a new pole intended to support small wireless facilities; and $270 per year for recurring fees, including Right-of-Way access fees. Local authorities can still charge higher fees if they demonstrate that their actual and reasonable costs exceed the levels prescribed.
- The fees charged for use or modification of rights-of-way owned by the local authorities such as streets, poles, traffic lights, etc., must also be reasonable and non-discriminatory.
- Local authorities may impose aesthetic limits on facility construction, but such burdens must be applied in a non-discriminatory manner, and must be established publicly in advance so all applicants can know what aesthetic standards will apply.
- Requirements that facilities be placed underground would not be permissible if such requirements effectively preclude deployment.
- Minimum spacing requirements are permissible to the same degree as aesthetic requirements.
- A 60 day shot clock shall apply to applications for co-location of small facilities on existing structures, and a 90 day shot clock will apply to applications for such facilities on new structures. These limits apply to batched applications as well as individual ones. Local authorities may rebut the presumption of the reasonableness of these limits if they can show that acting within these timeframes is not feasible.
- The shot clocks for co-locations apply to sites that have not previously been approved for wireless use as long as they are pre-existing structures.
- If a local authority fails to act within the time frame established by the shot clock, the applicant may seek expedited relief in court for the authority’s failure to act. This was a victory for the local authorities since there had been strong sentiment for imposing a “deemed granted” remedy for failures to meet the prescribed timetables. By requiring judicial action to enforce the shot clocks, delay and expense are likely to be encountered despite the FCC’s confidence that its guidance will usually preclude the need for such measures.
- The shot clocks apply to “pre-application” requirements which are now imposed by some authorities. Such requirements would otherwise effectively extend the permissible period for action on applications.
These new rules will go a long way toward sweeping aside local obstacles to facilities construction, obstacles which have accrued over the last decades as municipalities and tribes have looked to wireless carriers as cash cows which can be milked for revenue. It must be noted, however, that the new rules also represent another broadening of federal authority to regulate matters which have traditionally been left in the hands of states, counties, or municipalities. Those entities are surely preparing their court challenges to the new rules, so the FCC will have to weather that challenge in the months ahead. Still, from a policy standpoint, it is hard to question the necessity of taking forceful federal action to expedite the availability of 5G service as ubiquitously and quickly as possible.