As anticipated, the Federal Communications Commission today adopted a Declaratory Ruling and Third Report and Order clarifying the legal limits on state and local governments’ regulation of wireless deployment. The Commission’s action today is its latest step to promote the deployment of wireless infrastructure and services in the face of state and local barriers.
Based on the draft released by the Commission on September 5, 2018, we know that the Commission has held that under both Section 253 and Section 332(c)(7)(B)(i)(II) of the Communications Act, a state or local government prohibits or has the effect of prohibiting the provision of telecommunications services if the state or local government “materially inhibits or limits any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.” The Commission makes clear that a local government requirement can violate that standard even if it is not “insurmountable.”
In reaching its Declaratory Ruling, the Commission rejects the conflicting decisions of courts that have required providers to demonstrate an already-occurring or complete inability to offer all telecommunications services. The Commission also makes clear that the standard adopted by courts requiring a demonstration of a “significant gap” in coverage and a lack of feasible alternative locations is inconsistent with the correct interpretation of the Act. Notably, the Commission makes clear that local requirements create unlawful effective prohibitions not only when a company seeks to fill a coverage gap but also when densifying a wireless network, introducing new services or otherwise improving service capabilities.
Applying the correct standard, the Commission makes clear that state or local fees for access to the public rights of way are limited to the government’s reasonable cost related to and caused by the deployment, and the fees must be no higher than the fees charged to other telecommunications providers in the right of way. The Commission also makes clear that Sections 253 and 332 apply to local government-owned poles and other facilities, contrary to arguments that such facilities are “proprietary” and thus exempt. To provide guidance, in the draft order the Commission had included specific presumptively reasonable fee amounts.
The Commission also clarifies that although local governments retain some authority to consider aesthetics, the consideration must be no more burdensome than imposed on other right of way occupants, reasonable, objective, and made public in advance.
Finally, the Commission adopts new “shot clocks” applicable specifically to the deployment of small wireless facilities. The Commission adopts a new 60 day shot clock for collocation of small cells to existing poles, and a 90 day shot clock for an application to install a small cell on a newly installed pole. During the meeting, the Commission also stated that a local government would have the opportunity to restart the shot clock if it provided written notice of a material deficiency in the application within ten days. The exact parameters and conditions on the new option to stop the clock will be in the final order.
We will provide a more complete summary of the Commission’s action when the final text of the Commission’s Declaratory Ruling is released.