Wednesday, September 26, 2018

FCC eases regulatory barriers for small cells and 5G infrastructure

The FCC adopted an order aimed at removing regulatory barriers that inhibit the deployment of infrastructure necessary for 5G and other advanced wireless services.

In a Declaratory Ruling, the FCC focuses primarily on local fees for the authorizations necessary to deploy small wireless facilities.  Specifically, the Declaratory Ruling concludes that state and local governments may not charge fees that "are greater than a reasonable approximation of objectively reasonable costs for processing applications and for managing deployments in the rights-of-way." The ruling sets specific fee levels for small wireless facility deployments that presumably comply with the relevant standard; and provides guidance on when certain state and local non-fee requirements that are allowed, such as aesthetic and undergrounding requirements—may constitute an effective prohibition of service.

The second part of the FCC's decision establishes two new shot clocks for small wireless facilities (60 days for collocation on preexisting structures and 90 days for new builds); and codifies the existing 90 and 150 day shot clocks for wireless facility deployments that do not qualify as small cells that were established in 2009.

FCC Chairman Ajit Pai stated "To be sure, there are some local governments that don’t like this Order.  They would like to continue extracting as much money as possible in fees from the private sector and forcing companies to navigate a maze of regulatory hurdles in order to deploy wireless infrastructure.  But these actions are not only unlawful, they’re also short-sighted.  They slow the construction of 5G networks and will delay if not prevent the benefits of 5G from reaching American consumers.  And let’s also be clear about one thing:  When you raise the cost of deploying wireless infrastructure, it is those who live in areas where the investment case is the most marginal—rural areas or lower-income urban areas—who are most at risk of losing out.  And I don’t want 5G to widen the digital divide; I want 5G to help close that divide."

Dissenting, in part, FCC Commissioner Jessica Rosenworcel writes: "Instead of working with our state and local partners to speed the way to 5G deployment, we cut them out.  We tell them that going forward Washington will make choices for them—about which fees are permissible and which are not, about what aesthetic choices are viable and which are not, with complete disregard for the fact that these infrastructure decisions do not work the same in New York, New York and New York, Iowa.  So it comes down to this: three unelected officials on this dais are telling state and local leaders all across the country what they can and cannot do in their own backyards.  This is extraordinary federal overreach."