Federal Communications Commission (FCC) Commissioner Brendan Carr recently announced a proposed order aimed at accelerating next-generation 5G wireless networks that would significantly limit local authority. Similar to the STREAMLINE Small Cell Deployment Act introduced in the U.S. Senate, the FCC’s proposed order would limit fees local governments are currently able to assess on telecommunications companies for the placement, construction or co-location of new wireless service facilities. Additionally, the plan would only provide local governments 60 days to evaluate applications from wireless companies to attach 5G Small Cells to existing structures and 90 days to review applications for equipment on entirely new structures. Unlike the STREAMLINE Act, however, the order does not include the “deemed granted” approach, under which applications would be automatically approved if the local government fails to complete its evaluation within the set timeframe.
Specifically, the declaratory ruling and report and order would:
- Create two new categories of shot clocks for small cell wireless facility review. Local governments would have 60 days to complete review of applications for collocated small cells, and 90 days for small cells on new structures. These shot clocks include “all aspects of and steps in the siting process,” including mandatory pre-application procedures, public notice and meeting periods, and construction permitting. The shot clock would begin upon submission of an application, whether or not the application is complete.
- Determine that exceeding the shot clock is a “prohibition on the provision of services,” and allows wireless site applicants to seek expedited injunctive relief in court within 30 days of a local government missing a shot clock deadline. More restrictive state laws will remain in effect and will not be replaced by this order.
- Limit application fees for all small wireless facilities to $500 for up to five sites, and $100 per site for each site thereafter.
- Limit recurring fees for small cells in public rights-of-way, to a “reasonable approximation” of the locality’s “objectively reasonable costs” for maintaining the rights-of-way, which must be no higher than fees for similar actors. The FCC defines reasonable recurring fees to be limited to $270 per site, per year. Local governments are expressly prohibited from recovering any cost not directly related to rights-of-way maintenance. The FCC also finds gross revenue fees to be presumptively unreasonable and existing agreements are not grandfathered.
- Limit allowable local aesthetic requirements, including minimum spacing requirements, to those that are “(1) reasonable, (2) no more burdensome than those applied to other types of infrastructure deployments and (3) published in advance.” The FCC notes that undergrounding requirements for wireless facilities would constitute an illegal prohibition of service by a local government.
According to Carr, the plan would cut roughly $2 billion in administrative fees and stimulate additional investments. However, local governments have expressed concerns that the proposed language would significantly limit local governments’ ability to properly regulate wireless telecommunications infrastructure deployment. By narrowing the window for evaluating 5G deployment applications, the FCC order would effectively prevent local governments from properly examining the impact that construction, modification or installation of broadcasting facilities may have on public health, safety and welfare of the local community
If approved at the FCC’s September 26 open meeting, the new regulations would go into effect 30 days after publication in the Federal Register. Counties would then face enforcement action if wireless providers or other small cell applicants challenge them in court based on noncompliance with the above requirements.
In March 2018, NACo sent a letter to the FCC opposing similar proposals that would limit the authority of local governments. NACo encourages county officials to urge their congressional representatives to work with and consult local governments to develop new laws or regulations that would speed the deployment of next-generation telecommunications infrastructure without limiting local zoning authority or the ability of local governments to raise revenue.