Citing its statutory obligation “to facilitate the deployment of network facilities needed to deliver more robust wireless services,” the FCC released a Public Notice (PN) late last week which solicits comment on ways in which the FCC can induce local governments to expedite the approval process for the siting of small cells to be used in support of fifth-generation (5G) wireless services.  Issued on December 22 by the FCC’s Wireless Telecommunications Bureau (WTB), the PN responds, in part, to a petition for declaratory ruling filed on November 30 by wireless infrastructure provider Mobilitie LLC, a holder of “authorizations from state public utility commissions nationwide to provide telecommunications services.” 

The Mobilitie petition focuses on the interpretation of Section 253(c) of the 1934 Communications Act, which states: “nothing in this section affects the authority of a state or local government to manage the public right-of-way or to require fair and reasonable compensation from telecommunications providers, on a competitively neutral and non-discriminatory basis, for use of public rights-of-way on a non-discriminatory basis.” Noting that it has filed thousands of applications for small cell permits that “cover tens of thousands of individual sites to be located in rights-of-way,” Mobilitie advised the FCC that, while many communities throughout the U.S. “have worked cooperatively” with the company and charge reasonable siting fees, many others are “requesting multiple, exorbitant fees that unlawfully discriminate against wireless technology and impair new or improved services.”  Although many more small cells are required in contrast to traditional cell sites to provide adequate coverage of an area, Mobilitie contends that small cells and other infrastructure for 5G technologies are “less intrusive than equipment for older wireline or wireless services.”  Characterizing the high fees charged by some localities as “particularly unjustified,” Mobilitie thus argued in its petition that “the regulatory approval process for these types of new wireless facilities should be faster and less burdensome, not slower and more expensive.”

The PN seeks industry input on possible improvements to the local government siting process.  Specifically, the PN requests comment on (1) the interpretation of “fair and reasonable compensation” under Section 253(c) as costs which are limited to the issuance of permits and the management of rights-of-way, and (2) the definition of “competitively neutral and non-discriminatory” as local licensing or franchise charges that do not exceed those imposed on other providers for similar access.  Comment is also requested on what is a “reasonable period of time” for local government processing of small cell siting applications, which the FCC interprets as being shorter in duration than the siting of traditional wireless facilities.  While acknowledging the “important role” that local governments play in “preserving local interests such as aesthetics and safety,” the WTB nevertheless emphasized: “it is our responsibility to ensure that . . . deployment of network facilities does not become subject to delay caused by unnecessarily time-consuming and costly siting review processes that may be in conflict with the Communications Act.”