Bringing 21st Century Sensibilities to 20th Century Wireless Infrastructure Law

By: Courtney Davis and Lynn Whitcher 

Mobile connectivity has evolved over the decades as we have moved from talk, to text, to video, and beyond. The hot topic today is 5G, with discussions focused on an evolution in mobile and other device capabilities unleashed by ultralow latency and high throughput – more devices connected at the same time with near instantaneous response from servers. What is often overlooked is the infrastructure backbone needed to support these services. 

While prior generations of wireless technology could be supported by fewer, larger, and more powerful base stations, such as the all too familiar cell tower or rooftop sites (known as “macro sites”), 5G requires the installation of smaller, less-powerful facilities in more locations. These “small cell” facilities are typically located on utility poles, streetlights, traffic lights, and other locations along streets and roadsides, with an antenna that does not exceed three cubic feet and all other equipment not exceeding 28 cubic feet. It is estimated 800,000 small cells will be needed to provide 5G through 2026. 

Siting Challenges for 5G Infrastructure 

Up until a few years ago, jurisdictions applied zoning and permitting regulations intended for cell towers and other large wireless facilities to the newer, more streamlined small cell technology attached to utility poles. As a result, there were high application and review costs to pay, stringent reports required, and significantly long lead times to approvals. Additionally, as there were so many more applications than the typical one-off macro site, the jurisdictions began to fear so many of these sites. 

While several jurisdictions across the United States collaborated with the wireless industry to ensure a smooth process for deployment of small cells, others halted or delayed the siting approval process as they were unfamiliar with the technology, understaffed for the volume of siting applications, worried about integration of these new facilities into the community, or some combination of the above. 

Moreover, there were instances where the jurisdiction owned the infrastructure on which the carrier sought to convert from a simple streetlight (or other asset type) to a wireless facility. This added another layer of complexity as this required Master Lease Agreements (known as “MLAs”) and design standards to be negotiated on top of the developing zoning and permitting processes. 

Recognizing the efficient deployment of 5G as a matter of critical national importance, in 2018 the Federal Communications Commission (“FCC”) stepped in to issue several orders to streamline these deployments. On August 12, 2020, three of these orders survived scrutiny before the U.S. Court of Appeals for the Ninth Circuit in a case called City of Portland v. United States – the Small Cell Order, the Moratoria Order, and the One Touch Make Ready (“OTMR”) Order.  

Balancing a Federal Mandate with Local Authority 

The orders at issue were promulgated by the FCC under the authority of the Telecommunications Act of 1996 (the “Telecom Act”), passed by Congress at a time when mobile technology was still in its early stages. 

Even then, the federal government understood that to effectively encourage the expansion of this nascent technology to viable levels, limitations would have to be placed on localities’ traditional authority to regulate the location, look, and maintenance of infrastructure facilities. 

The question is, how do we maintain a balance between the respective interests of the federal government and local agencies in regulating telecommunication siting in a rapidly changing technological world?

The Current Siting Landscape Post Portland v. U.S. 

Shortened Shot Clocks with Expanded Scope 

  • State and local governments have 60 days to decide applications for wireless installations on existing infrastructure, and 90 days for all other wireless applications.  This was shortened from 90 and 150 days, respectively.  
  • These time limits are not restricted to zoning applications. They encompass all permitting decisions, such as building, electric, road closure, construction permits, etc. 
  • If a jurisdiction fails to timely approve or deny, the service provider’s remedy is not that the application is deemed granted, but instead to seek an injunction forcing a faster decision. The jurisdiction may respond with a showing that additional time is necessary under the circumstances.  (Note that the “deemed granted” remedy for violations of the 60-day shot clock for Eligible Facilities Requests under 47 U.S.C. § 1455(a) (often referred to as “§ 6409” of the Federal Middle Class Tax Relief and Job Creation Act of 2012 (the “Spectrum Act”)) is not affected by this ruling and remains in place.)

Small Cell Fees

  • Application fees not exceeding $500 and recurring fees not exceeding $270/year are  presumptively lawful. 
  • Fees exceeding these levels can be justified by the jurisdiction where it can demonstrate its actual costs exceed these presumptive levels. The fees must be: (1) a reasonable approximation of locality’s costs, (2) with only reasonable costs factored into those fees, and (3) no higher than the fees charged to similarly situated competitors in similar situations. 
  • Even where local governments charge excessive fees that seem small in isolation, given the nature and volume of anticipated small cell deployment, this has a negative impact on the carrier’s ability to roll-out nationwide 5G by taking away funds that would have been used for additional 5G deployments in other areas. 

Aesthetics

  • The Telecom Act was intended to ensure state and local governments grant fair access to new technologies and not give preferential treatment to incumbent providers, such as by unreasonably favoring one competitor over another in the area of aesthetics. 
  • Nevertheless, state and local governments often have legitimate aesthetic reasons for accepting some deployments and rejecting others. Therefore, jurisdictions must have flexibility to treat facilities that create different aesthetic concerns differently, even between facilities that provide functionally equivalent services. In fact, the Telecom Act specifically contemplated there would be some discriminatory effect among providers. Congress preempted only regulations that “unreasonably discriminate” among providers. 
  • To establish “unreasonable discrimination” providers must show they have been treated differently from other providers whose facilities are “similarly situated” in terms of (1) structure, (2) placement, or (3) cumulative impact, when compared to the facilities in question. 
  • Although the FCC had implemented a standard that any local aesthetic requirements imposed on 5G technology be “no more burdensome” and impose no additional costs compared to any other infrastructure deployments, this was found to exceed the agency’s Congressional directive and was rejected by the Court. 
  • Different aesthetic standards for different infrastructure deployments may be OK so long as it is not unreasonably discriminatory. 
  • Locally imposed aesthetic regulations must be published in advance and must be “reasonable,” meaning they must be technically feasible and reasonably directed at remedying aesthetic harm.
  • The FCC also imposed a requirement that aesthetic regulations be “objective,” meaning they were to incorporate clearly defined and ascertainable standards, applied in a principled manner. Effectively, this reduced local aesthetic control over 5G deployments to color, size, shape, and placement. This limitation was rejected by the Court, which found local authorities must be permitted a certain level of discretion to protect safety and the intangible public harm from unsightly deployments or deployments out-of-character with a particular neighborhood. All subjective aesthetic requirements are not impermissible. While it is possible that a zoning board could exercise its discretion in a way that effectively, and unlawfully, prohibited 5G, it is equally possibly that its discretion would be exercised appropriately. 

FCC Power to Regulate within Rights-of-Way 

  • The FCC may regulate wireless installations on right-of-way assets (i.e., utility poles and traffic lights) owned by municipalities as well as public or private utilities. 

One-Touch Make-Ready 

  • In adopting the One-Touch Make-Ready (“OTMR”) Order, the FCC intended to make it faster and cheaper for broadband providers to attach to existing utility poles. Prior to the Order, only the pole owner could perform the prep work necessary for attachment. The OTMR Order creates a new process that allows the attacher to make these preparations themselves using approved contractors. 
  • Utilities may not require overlashers (those who affix additional cables or wires to ones already attached to the pole) conduct preinstallation engineering studies or pay for the cost of these studies. 
  • Utilities may not deny access to a new attacher solely due to the existence of a preexisting safety violation that the attacher did not cause. These denials have the effect of passing costs onto innocent parties. However, utilities maintain the right to reject proposed attachments that INCREASE safety risks on a utility pole. 
  • Previously, attachers could hire contractors to perform prep work only on the lower portion of the pole. Under the OTMR Order, attachers may now prepare the entire pole or attachment (“Self-Help Rule”). The Self-Help Rule requires the attacher give the utilities notice and a 90-day window to perform the pre-attachment work itself or to be present while this work is completed by the attacher. 

Moratoria

  • In response to complaints that state and local ordinances and practices either explicitly or had the effect of barring small cell deployment, the FCC articulated standards to differentiate between permissible municipal regulations and impermissible moratoria.
    • Express moratoria are prohibited, even where of a short duration. This applies to statutes, regulations, or other written legal requirements that expressly prevent or suspend the acceptance, processing, or approval of applications or permits necessary for deploying telecommunication services. 
    • De facto moratoria are permissible so long as they are of general applicability – in other words, do not facially target small cells – and so long as they do not continue for unreasonably long or indefinite amounts of time. This applies to state or local actions that effectively halt or suspend the acceptance, processing, or approval of applications or permits for telecommunications services or facilities in a manner akin to an express moratorium. 
    • Emergency bans on the construction of 5G facilities to protect public safety and welfare are permissible where those laws are (1) competitively neutral, (2) necessary to address the emergency, disaster, or related public needs, and (3) target only those geographic areas affected by the disaster or emergency. 

It is unclear whether the August 12th ruling will be the final word on small cell deployments. Any petition for en banc review before the 9th Circuit is expected by September 11, 2020, with the possibility of further challenge before the U.S. Supreme Court. With America’s telecommunications operators planning to invest $275 billion to deploy 5G networks, there is much at stake. Watch this space for further developments.  

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As a service provider to the wireless industry, we would like to share our insights, observations, and analysis about what is happening from time to time.