FCC Expected to Further Improve Wireless Facilities Deployment on September 26th

On September 26, 2018, the Federal Communications Commission (“FCC”) is widely expected to adopt a Declaratory Ruling and Third Report and Order (“Order”) to reduce the local and state regulatory burdens on deployment of wireless facilities, including small cell networks. Based on a recently released draft of the Order, the FCC will adopt “shot clock” deadlines for local and state approvals of small cell deployment and will set specific fee ceilings that local and state authorities may charge small cell applicants. In addition, the FCC will codify and clarify its existing federal preemption precedent that applies to all wireless siting actions by state and local authorities. While we expect the draft Order will be adopted in full as described below, please note that it is possible the FCC will modify the Order prior to its expected adoption on September 26.

New FCC Rules to Deploy Small Cell Networks Cheaper and Faster

The Order will set time limits (or “shot clocks”) on local or state review of small cell applications, establish presumptively reasonable limits for small cell application and related fees, and impose some limits on aesthetic requirements of state and local authorities when they evaluate applications to construct small cell networks.

Small Cell “Shot Clocks”

The Order will establish the following two rebuttable time limits for state or local authorities to review and decide small cell applications:

  • Sixty (60) days for an attachment to be collocated to an existing structure
  • Ninety (90) days for an attachment to a new structure

The small cell “shot clocks” will apply to applications for deployment of a single cell and to batched applications with multiple sites. If a state or local authority fails to act within these “shot clock” periods, the FCC sets forth a strong case for the wireless provider to obtain an expedited court injunction ordering the state or local authorities to grant the small cell application.

Limits on Local or State Fees

The Order will hold that excessive or unreasonable local or state fees and charges associated with small cell wireless facility deployments are preempted by federal law. Such local or state fees or charges must be non-discriminatory, and no more than a reasonable and objective approximation of the government’s costs of processing applications and managing right-of-way (“ROW”) deployments. The limits on local or state fees apply not only to application fees for permits, but also to any recurring ROW access fees and recurring fees for access to government property in a ROW (e.g., street light or traffic light poles).

The Order will also establish the following “safe harbor” ceilings on state or local government fees of small cell deployments:

  • State or local authorities may charge no more than $500.00 for a single up-front application that includes up to five (5) small cell antennae, with an additional charge of no more than $100.00 for each additional small cell antenna.
  • State or local authorities may charge no more than $270.00 for an annual recurring fee, including any ROW access fees or fees for attachment to a government-owned structure in a ROW.

Limits on Aesthetic Factors

Finally, the Order will limit the use of aesthetic or similar factors in the state or local application review process, including undergrounding and minimum spacing requirements. Such factors are permitted under federal law only if (1) they are reasonably designed to prevent unsightly or out-of-character deployments; (2) they are no more burdensome than requirements applied to other infrastructure deployments; and (3) the requirements are published in advance.

Improvements to the State and Local Approval Process for All Wireless Facilities

In addition to addressing small cell deployment, the Order will take steps to improve the process for providers deploying all types of wireless facilities.

“Shot Clock” Rules

The Order will codify the FCC’s existing non-small cell wireless “shot clock” precedent – including the 90-day clock for collocating attachments and the 150-day clock for other applications – in Part 1 of the FCC’s regulations. The Order will also clarify that the FCC’s existing and new small cell “shot clock” rules apply to all aspects and all steps of the wireless siting process, as well as to applications for siting on structures that have not been previously zoned for wireless use. Further, the FCC will clarify that the “shot clocks” start when the wireless provider files its application with the state or local authority, but the clock may be paused if the application is found to be incomplete. State or local pre-application procedures, however, do not toll the start of the “shot clock” period.

Federal Preemption Standard

To address conflicting federal court decisions regarding the correct legal standard of preemption in this area, the Order will find that federal preemption is appropriate where state or local laws “materially inhibit” the deployment of wireless facilities. Federal law requires a fair and balanced state and local regulatory environment, and state or local laws that impose an excessive financial burden or a competitive disparity on wireless infrastructure deployment will be subject to federal preemption. This standard will apply regardless of whether the wireless provider is filling in gaps of its service areas or densifying its network to either provide additional services or improve its existing services. Finally, the Order will hold that all rates and terms of access to ROWs, and other government property for wireless siting, fall within the scope and limits of the FCC’s interpretations of federal preemption.