FCC adopts rule to limit local wireless site review

At its Sept. 26 meeting, the Federal Communications Commission adopted new rules that limit local regulation, review and approval of so-called small cell wireless facilities.

The “Declaratory Ruling and Third Report and Order,” the draft of which was released on Sept. 5, argues that “upwards of 80 percent” of new wireless deployments are in the form of small cell facilities to address increased usage and capacity, and regulations add costs and delay meeting that demand.

On Sept. 11, the MMA submitted a letter to the FCC opposing the order, stating that it would strip municipal authority to protect the health, safety and welfare of residents and limit the ability of cities and towns to negotiate fair deals with wireless providers.

The order builds upon a March FCC decision that excluded small cells from some of the federal review procedures designed for larger towers.

While a number of states and localities have updated and modernized their approaches to small cell deployment, the FCC argues there are a number of persistent outliers and seeks to clarify the preemptive scope that Congress intended.

The order reaffirms the FCC’s interpretation of the “effective prohibition” standard, which declares that a state or local legal requirement constitutes an effective prohibition if it “materially limits or inhibits” a provider’s ability to fill coverage gaps, “densify” a wireless network, introduce new services, or otherwise improve service capabilities.

Regarding right-of-way fees for small wireless facilities, the FCC’s order lays out a standard for evaluating whether such fees amount to an “effective prohibition.” The order states that fees must be an objective “reasonable approximation” of costs and “no higher than those fees charged to similarly situated competitors in similar situations.”

The order includes a fee schedule that would presumptively not rise to the level of “effective prohibition,” along with limits on non-fee legal requirements that may affect the ability of providers to deploy facilities, focusing on aesthetic and undergrounding requirements.

The order adopts a new set of time limits for cities and towns to act upon small wireless facility applications. Local officials will need to process applications for existing structures within 60 days and applications for newly constructed facilities within 90 days. Failure to act within prescribed time periods amounts to a “presumptive prohibition on the provision of services,” allowing providers to pursue remedies available to them such as permanent injunctive relief. The FCC also expands what would likely fall under these time limits, capturing “all authorizations necessary for the deployment of personal wireless services infrastructure.”