Sept. 20, 2018

The Federal Communications Commission (FCC) announced a proposal last week designed to streamline the deployment of next-generation — or “5G” — wireless networks. Many of the policies embodied in the Commission’s Declaratory Ruling and Third Report and Order are akin to the preemptions of local government authority that were unsuccessfully sought by the wireless telecommunications industry in California in 2017 (SB 649, Hueso) — including capped rates for pole attachments and limitations on reasonable local government review.

The FCC’s plan, which is set to be voted on by the Commission on September 26, has been met by strong resistance from local governments. Specifically, counties and cities are objecting to the FCC’s proposal to provide localities with only 60 days to evaluate applications from companies for attaching 5G small cells to existing structures and 90 days for equipment on new structures. Additionally, many localities are expressing opposition to the FCC’s proposed definition of what would constitute an “effective prohibition” of wireless services.  If adopted by the Commission, the definition would invite challenges to long-standing local rights-of-way requirements and would open local jurisdictions to the likelihood of more conflict and litigation over requirements for aesthetics, spacing, and undergrounding.

Local governments also have taken issue with several other features of the FCC proposal, including the Commission’s restrictive interpretation of “fair and reasonable compensation” for rights-of-way use. Pursuant to the FCC’s Order, all recurring fees could not exceed $270 per small cell, thus preempting current local practices of changing wireless providers “rent-based” fees, which are based on a fair market value calculus.

CSAC, along with numerous organizations and localities from across the country, has gone on record in opposition to the aforementioned components of the FCC’s order. Comments on the draft were due to the Commission on September 19.

Looking ahead, it is widely anticipated that the FCC will adopt the controversial order when it votes on the plan next week.  Absent sufficient changes to the order, several local interests have indicated that they will seek relief in federal court to overturn the pending action.