FCC Action Removes Regulatory Barriers to Infrastructure Investment to Facilitate 5G Deployment in US

FCC Press Release

FCC FACILITATES DEPLOYMENT OF WIRELESS

INFRASTRUCTURE FOR 5G CONNECTIVITY

Action Removes Regulatory Barriers to Infrastructure Investment

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WASHINGTON, September 26, 2018—Today, the Federal Communications Commission took another important step in its ongoing efforts to remove regulatory barriers that inhibit the deployment of infrastructure necessary for 5G and other advanced wireless services.  This action, which builds upon those already taken by states and localities to streamline deployment, underscores the FCC’s commitment to ensuring that the United States wins the global race to 5G.

The first part of the Commission’s decision, a Declaratory Ruling, focuses primarily on local fees for the authorizations necessary to deploy small wireless facilities.  Specifically, the Declaratory Ruling:

• Explains when a state or local regulation of wireless infrastructure deployment constitutes an effective prohibition of service prohibited by Sections 253 or 332(c)(7) of the Communications Act;
• Concludes that Section 253 and 332(c)(7) limit state and local governments to charging fees that are no greater than a reasonable approximation of objectively reasonable costs for processing applications and for managing deployments in the rights-of-way.
• Removes uncertainty by identifying specific fee levels for small wireless facility deployments that presumably comply with the relevant standard; and
• Provides guidance on when certain state and local non-fee requirements that are allowed under the Act—such as aesthetic and undergrounding requirements—may constitute an effective prohibition of service.

The second part of the Commission’s decision, the Third Report & Order in the Wireless Infrastructure Docket:

• Establishes two new shot clocks for small wireless facilities (60 days for collocation on preexisting structures and 90 days for new builds);
• Codifies the existing 90 and 150 day shot clocks for wireless facility deployments that do not qualify as small cells that were established in 2009;
• Concludes that all state and local government authorizations necessary for the deployment of personal wireless service infrastructure are subject to those shot clocks; and
• Adopts a new remedy for missed shot clocks by finding that a failure to act within the new small wireless facility shot clock constitutes a presumptive prohibition on the provision of services.

Action by the Commission September 26, 2018 by Declaratory Ruling and Report and Order (FCC 18-133).  Chairman Pai, Commissioners O’Rielly and Carr approving.  Commissioner Rosenworcel approving in part and dissenting in part. Chairman Pai, Commissioners O’Rielly, Carr, and Rosenworcel issuing separate statements.

WT Docket No. 17-79; WC Docket No. 17-84

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This is an unofficial announcement of Commission action.  Release of the full text of a Commission order constitutes official action.  See MCI v. FCC, 515 F.2d 385 (D.C. Cir. 1974).

Previous statement issued by U.S. Conference of Mayors CEO and Executive Director Tom Cochran:

“The Conference of Mayors strongly opposes these proposals and calls on the agency to change them; absent such changes, the Conference and its members will seek relief in federal court to overturn this unprecedented overreach by the FCC.”

FCC Commissioner Rosenworcel (excerpt from today’s FCC meeting):

“THIS IS EXTRAORDINARY FEDERAL OVERREACH, AND I DON’T BELIEVE THAT THE LAW PERMITS WASHINGTON TO RUN ROUGHSHOD OVER STATE AND LOCAL AUTHORITY LIKE THIS, AND I WORRY THAT THE LITIGATION THAT FOLLOWS WILL ONLY SLOW OUR 5-G FUTURE.

FOR STARTERS, THE 10TH AMENDMENT RESERVES POWERS TO THE STATES THAT ARE NOT EXPRESSLY GRANTED TO THE FEDERAL GOVERNMENT. IN OTHER WORDS, THE CONSTITUTION SET UP A SUBSTITUTION OF DUAL SELF REMEDY THAT INFORMS ALL OF OUR LAWS. TO THIS END, SECTION 253 BOUNCES THE INTERESTS OF STATE AND LOCAL AUTHORITIES WITH THIS AGENCY’S RESPONSIBILITY TO EXPAND THE REACH OF COMMUNICATION SERVICE. WHILE SECTION 253-A IS CONCERNED WITH STATE AND LOCAL REQUIREMENTS THAT MAY PROHIBIT OR EFFECTIVELY PROHIBIT SERVICE, SECTION 253-D PERMITS PREEMPTION ONLY ON A CASE BY CASE BASIS AFTER NOTICE AND COMMENT. WE DO NOT DO THAT HERE. MOREOVER, THE ASSERTION THAT FEES ABOVE COST OR LOCAL AESTHETIC REQUIREMENTS IN A SINGLE CITY ARE TANTAMOUNT TO A SERVICE PROHIBITION ELSEWHERE STRETCHES THE STATUTE BEYOND WHAT CONGRESS INTENDED AND LEGAL PRECEDENT AFFORDS. IN ADDITION, THIS DECISION IRRESPONSIBLY INTERFERES WITH EXISTING AGREEMENTS AND ONGOING DEPLOYMENT ALL ACROSS THE COUNTRY. THERE ARE THOUSANDS OF CITIES AND TOWNS WITH AGREEMENTS FOR INFRASTRUCTURE DEPLOYMENT, INCLUDING FOIFING WIRELESS FACILITIES THAT WERE NEGOTIATED IN GOOD FAITH. SO MANY OF THEM COULD BE TORN APART BY OUR ACTIONS HERE.

IF WE WANT TO ENCOURAGE INVESTMENT, UPENDING COMMITMENTS MADE IN BINDING CONTRACTS IS A CURIOUS WAY TO GO. TAKE SAN JOSE, CALIFORNIA, EARLIER THIS YEAR, IT ENTERED INTO AGREEMENTS WITH THREE PROVIDERS FOR THE LARGEST SMALL CELL DRIVEN BROADBAND DEPLOYMENT OF ANY CITY IN THE UNITED STATES. THESE PARTNERSHIPS WOULD LEAD TO 4,000 SMALL CELLS ON CITY OWNED LIGHT POLES AND MORE THAN 500 MILLION OF PRIVATE SECTOR INVESTMENT. OR TAKE LITTLE ROCK, ARKANSAS, WHERE LOCAL REFORMS TO THE PERMITTING PROCESS HAVE PUT IT ON COURSE TO BECOME ONE OF THE FIRST CITIES TO BENEFIT FROM FOIFING — 5-G SERVICE. OR TAKE TROY, OHIO, THIS TOWN OF UNDER 26,000 HAVE SPENT TIME AND ENERGY TO DEVELOP STREAMLINED PROCEDURES TO GOVERN THE PLACEMENT, INSTALLATION AND MAINTENANCE OF SMALL CELL FACILITIES IN A WAY THAT WORKS FOR THEIR COMMUNITY. OR TAKE AUSTIN, TEXAS, IT HAS BEEN EXPERIMENTING WITH SMART CITY INITIATIVES TO IMPROVE TRANSPORTATION AND HOUSING AVAILABILITY AND AS PART OF THIS BROADER INITIATIVE, IT STARTED A PILOT PROJECT TO DEPLOY SMALL CELLS AND IT HAS ALREADY SECURED AGREEMENT WITH MULTIPLE PROVIDERS. THIS DECLARATORY RULING HAS THE POWER TO UNDERMINE ALL OF THESE AGREEMENTS AND COUNTLESS MORE JUST LIKE THEM. IN FACT, TOO MANY MUNICIPALITIES TO COUNT, FROM OMAHA TO OVER LAND PARK, CINCINNATI TO CHICAGO AND LOS ANGELES TO LOUISVILLE HAVE CALLED ON THE F.C.C. TO HALT THIS FEDERAL INVASION OF LOCAL AUTHORITY. THE NATIONAL GOVERNOR’S ASSOCIATION AND NATIONAL CONFERENCE OF STATE LEGISLATURES HAVE ASKED US TO STOP BEFORE DOING THIS DAMAGE. THE SENTIMENT IS SHARED BY THE UNITED STATES CONFERENCE OF MAYORS, NATIONAL LEAGUE OF CITIES, NATIONAL ASSOCIATION OF COUNTIES, AND GOVERNMENT FINANCE OFFICERS ASSOCIATION. IN OTHER WORDS, EVERY MAJOR STATE AND MUNICIPAL ORGANIZATION HAS EXPRESSED CONCERN ABOUT HOW WASHINGTON IS SEEKING TO ASSERT NATIONAL CONTROL OVER LOCAL INFRASTRUCTURE CHOICES, AND IN THE PROCESS STRIPPING LOCAL ELECTED OFFICIALS AND THE CITIZENS THEY REPRESENT OF A VOICE. YET CITIES AND STATES ARE TOLD NOT TO WORRY BECAUSE WITH THESE NATIONAL POLICIES, WIRELESS PROVIDERS WILL SAVE AS MUCH AS $2 BILLION IN COST WHICH IS WILL SPUR DEPLOYMENT IN REGULAR AREAS. BUT COME TO THE TEXT OF THIS DECISION, YOU WILL NOT FIND A SINGLE COMMITMENT MADE TO PROVIDING MORE SERVICE IN REMOTE COMMUNITIES. LOOK FOR ANY STATEMENTS MADE TO WALL STREET. NOT ONE WIRELESS CARRIER HAS SAID THIS ACTION WILL RESULT IN A CHANGE IN ITS CAPITAL EXPENDITURES IN RURAL AREAS. AS RONALD REAGAN FAMOUSLY SAID, TRUST BUT VERIFY. YOU CAN TRY TO FIND IT HERE BUT THERE IS NO VERIFICATION. THAT’S BECAUSE THE HARD ECONOMICS OF DEPLOYMENT IN RURAL AREAS DO NOT CHANGE WITH THIS DECISION. MOREOVER, THE ASSERTED $2 BILLION IN COST SAVINGS REPRESENTS NO MORE THAN 1% OF INVESTMENT NEEDED FOR NEXT GENERATION NETWORKS. IT DIDN’T HAVE TO BE THIS WAY.”

FCC Action Removes Regulatory Barriers to Infrastructure Investment to Facilitate 5G Deployment in US