FCC and Congress consider preemption of local authorities in broadband permitting process

Key Takeaways

On September 30, the Federal Communications Commission (FCC) issued notices of inquiries (NOIs) on Accelerating Wireline Infrastructure Buildout and Eliminating Barriers to Wireless Deployments. The NOIs explore whether the FCC should implement the following preemptions of local authority in wireless and wireline telecommunication deployments:

• Establishment of new shot clocks, and codification of existing shot clocks, including on the construction of new telecommunications infrastructure and modification of existing telecommunications infrastructure.
• Consideration of establishing a “deemed approved” provision, which would consider a telecommunications project to be approved if not acted upon by a locality within a specified time frame.
• Preemption on a locality’s ability to assess fees that are responsive to the varying size and scope of telecommunications projects.

The FCC invites the public to comment by November 17, and the reply comment period is through December 16. NACo plans to file comments in opposition to the FCC’s premise of need to preempt local authority in telecommunications infrastructure deployment.

The proceedings at the FCC come as Congress is considering legislation to streamline the deployment of broadband and preempt state and local authorities on telecommunications infrastructure. On September 18, the U.S. House Subcommittee on Communications and Technology held a legislative hearing titled “Examining Solutions to Expedite Broadband Permitting”. The hearing considered 29 broadband bills focused on barriers and potential solutions to permitting and regulation to hasten the buildout of broadband infrastructure. The Subcommittee is expected to conduct a markup of this legislation on Tuesday November 18.  

Counties, as meaningful contributors in the broadband buildout process, urge Congress to not consider any legislation that would limit the ability of counties to play a role in telecommunications infrastructure decisions. Counties remain committed to seeing meaningful reform to the federal permitting process that will expedite important infrastructure projects that effectively serve our communities. 

Overview of the FCC Notice of Inquiries

In both the Notice of Inquiry titled Build America: Elimination Barriers to Wireless Deployments and the Notice of Inquiry titled Build America: Eliminating Barriers to Wireline Deployments, the FCC seeks comment on various topics related to several important provisions in communications law and policy, including:

• Section 6409(a) of the Spectrum Act, which prohibits State and Local governments from denying any eligible facilities request for a modification of an existing wireless tower or base station that does substantially change the physical dimensions of such tower or base station.
• Sections 253 and 332(c)(7) of the Telecommunications Act of 1996, which prohibit state and local governments requirements that prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.
• The 2018 Small Cell Order, which was an FCC rulemaking proceeding which established shot clocks and other limitations on local government authority with respect to the construction, placement and modification of small personal wireless devices

With respect to Section 4609(a), the FCC is exploring whether to take the following actions under its wireless proceeding:

• Codify the definition of a concealment element, and what might constitute a defeat of a concealment element.
• Codify that siting approval conditions cannot be used to prevent modifications that are allowed under existing Commission rules.
• Disallow time-limited conditional use permits (CUPs) that allow a locality to deny a proposal to modify existing tower and wireless base stations.

With respect to Section 253 and 332(c)(7), the FCC is seeking comment on whether to take action under its wireless proceeding that would:

• Apply the 2018 Small Cell Order provisions to the construction, placement and modification of macro cell towers, and define herein what constitutes a macro cell tower (i.e. any wireless device outside of a small cell).
• Codify existing shot clocks on wireless facilities, clarify and codify the timeline for a shot clock (i.e. beginning at the point of application, and not being subject to tolling, unless the locality provides a response within 30 days on the incompleteness of an application or within 30 days on an application’s lack of submitting all necessary documents) and consider the adoption of a deemed granted provision.
• Assess disproportionate or otherwise unreasonable fees and determine if the Commission should adopt a standardized fees model based on the 2018 Small Cell Order that is based on “reasonable” fees that a locality can assess.
• Condition approval on aesthetic requirements or similar criteria.
• Impose other regulatory impediments, such as time-limited CUPs.

With respect to Section 253, the FCC is examining whether to take action under its wireline proceeding that would:

• Clarify that certain forms, methods or types of project authorization required at the local level constitute a violation of Section 253
• Establish shot clocks on authorizations required for providers to access the rights-of-way.
• Establish that only cost-based fees are permitted to be charged by local governments on wireline providers under Section 253
• Clarify that local agreements that involve in-kind contributions may constitute a violation of Section 253

The FCC's comment period for both Notice of Inquiries runs through November 17, and the reply comment period will run through December 16. 

What’s next? 

NACo plans to file comments throughout the comment cycles for both NOIs, and NACo will continue to monitor developments in Congress. NACo urges members to reach out to share feedback on the impact that preemption would bring if enacted.