On Wednesday, the Federal Communications Commission (“FCC”) released draft text of a Declaratory Ruling and Report and Order (“Order”). If approved, the Order would severely restrict local government control over their rights of way (“ROW”) by specifically preempting local siting processes for small cell wireless facilities.
The Order is a direct result of the FCC’s Broadband Deployment Advisory Committee (“BDAC”) hearings, which we have alerted our members to last summer, and earlier this year. As was feared, the FCC has accepted the BDAC’s recommendations despite those recommendations coming from a committee composed almost exclusively of industry representatives, and operating under the false assumption that local regulations act as a prodigal barrier to small cell deployment.
The Order would definitively conclude that Sections 253 and 332(c)(7) of the Federal Communications Act (“Act’)would apply to state and local governments’ review of applications to place small cell wireless facilities within the municipal ROW. These sections of the Act, which are currently not considered applicable to small cell facilities, restrict what conditions and standards local governments can place on those seeking access to the ROW. This includes limitations and standards set by local governments for aesthetic and system resiliency purposes.
In addition, the Order seeks to limit the fees that state and local governments can charge for processing applications. The Order would limit application to the actual cost of review, a number which is often difficult to determine. Furthermore, the Order identifies special fee levels for certain small wireless facility deployments which presumptively invalidates a higher fee and would place the burden on the reviewing entity to prove the necessity of the higher fee.
The Order also establishes a new “shot clock” for review of small cell wireless facilities. Under the proposed Order review of applications would need to be completed within 60 days for collocation on preexisting structures and 90 days for new builds. More drastically, the Order would find that the shot clock begins at the date of a pre-application meeting. These changes severely limit the time in which municipalities can review applications and would also start the time for review before complete information is available. While the shot clock is shortened, there is no indication from the Order that an application would be deemed granted as a remedy if a shot clock is overrun.
This Order is still a draft and will need to be voted on and approved at the next Open Commission Meeting, scheduled for Wednesday, September 26, 2018. Efforts to advocate against these preemptive changes can take place until September 18, 2018, but after that federal law prohibits additional lobbying until after the proposal is published in the Federal Register. A vote to approve the changes is expected to succeed, at which point local governments may file petitions for reconsideration or appeal the Order.
We are monitoring the work of our national affiliates at the National League of Cities (“NLC”) on this matter, which is preparing a template letter that our members can use as a base for filing their own objections with the FCC. We will share this letter template once it has been finalized by the NLC for you to use to express your concern with the Order to the FCC, our Senators, and Congressional delegation.
If you would like more information on small cell wireless systems and the application of federal law to local review of siting applications, please review the Bureau of Municipal Information white paper, Wireless Systems in the Right of Way, What You Need to Know. You can also find more information on how to plan for small cell wireless infrastructure in the League’s daily update from August 27, 2018, which includes a link to NLC’s model ordinances.
Contact: Frank Marshall, Esq., League Staff Attorney, FMarshall@njslom.org or 609-695-3481 x137.