The FCC’s adoption of a Declaratory Ruling and Third Report and Order on small cell deployment yesterday seemed like a home run, but it is still early innings in this fight between municipalities and the FCC.
According to the Declaratory Ruling, fees charged by a municipality for applications or rent must be limited to costs or they may be deemed as “effective prohibition of service.” Additionally, aesthetic and undergrounding requirements may also be deemed to be a prohibition of service small cell deployment. The Communications Act states that it is illegal to effectively prohibit service.
The Third Report & Order establishes new small cell shot clocks and codifies previous ones, and failure to act on an application will constitute an effective prohibition of services. (see above)
The Wall Street Journal editorial board hailed the ruling as a strike against “extortion by local politicians” that is “throttling the 5G Internet.” It used the minimum $4,200 annual rent cell pole attachments in Manhattan and annual rents between $750 to $2,500 in San Jose as its examples.
Comm. Michael O’Rielly, agreed, “By tackling exorbitant fees, ridiculous practices, and prolonged delays, we are taking the necessary steps to expedite deployment and make it more cost efficient.”
Chairman Pai noted that some local governments won’t like this Order, but he had little empathy for them. “They would like to continue extracting as much money as possible in fees from the private sector and forcing companies to navigate a maze of regulatory hurdles in order to deploy wireless infrastructure,” he said.
Indeed, the National League of Cities shot back at the FCC, calling the Order a set of “harsh new preemptions of local authority” over small cell deployment in the right-of-way. As a result, the NLC predicted wireless deployment will be slowed by the Order because it will increase litigation. (Add to that the U.S. Conference of Mayor and the National Association of Counties and others.)
“This is because the order contains little guidance and few definitions and offers a great deal of leeway to future judges in cases between local governments and wireless providers over interpreting the reasonableness of local fees and aesthetic requirements,” NLC wrote.
The FCC vote was a blow against local control for governments, according to the NLC, but it encouraged cities to fight back against what it called the FCC’s overreach.
The NLC seemed to have a friend on the Commission in Jessica Rosenworcel who was critical of the FCC’s stance against state and local governments.
“Instead of working with our state and local partners to speed the way to 5G deployment, we cut them out,” she said. “We tell them that going forward Washington will make choices for them — about which fees are permissible and which are not, about what aesthetic choices are viable, and which are not.”
Rosenworcel did not believe the FCC’s interpretation of Section 253 of the Communications Act would pass muster in court, because it goes against the Tenth Amendment, which reserves powers to the states that are not expressly granted to the federal government.
“I do not believe the law permits Washington to run roughshod over state and local authority like this and I worry the litigation that follows will only slow our 5G future,” she said.
Yesterday’s action gave the wireless industry everything it wanted, tighter wireless site review periods and minimal application and rent costs for the rights of way. As they say, be careful what you wish for.
Robert Stapleton, CEO, National Wireless Ventures, notes the anger that the FCC’s action has spurred at the City of Chicago and at the National League of Cities, which, he said, may sour the relationship between carriers and the municipalities. And the tower siting community may be caught in the middle.
“We have been making strides and now the FCC just threw a rotten tomato at the cities,” Stapleton said. “The FCC is trying to help, but this is the kind of help that gets us in trouble. There are a lot of ways a city can slow down your small cell roll out.”