On Wednesday, September 26, the Federal Communications Commission voted to approve a declaratory ruling and report and order that would enact harsh new preemptions of local authority over small cell wireless facility deployment and management of local rights-of-way.
The order will go into effect 90 days after publication of the final version in the Federal Register. As previously reported on CitiesSpeak, the order will:
- Shorten the time cities have to process applications for small cells to either 60 or 90 days, depending on whether they are being mounted on an existing or new structure;
- Limit application fees for small cells to $100 per site, and recurring fees to $270 per site, per year, for small cells in the rights-of-way;
- Prohibit cities from assessing fees that include anything other than a “reasonable approximation” of “reasonable costs” directly related to maintaining the rights-of-way and the small cell facility; and
- Limit aesthetic review and requirements (including undergrounding and historic/environmental requirements) to those that are reasonable, comparable to requirements for other rights-of-way users, and published in advance.
NLC, along with its local government partners, has fought this preemption order through comments to the FCC and advocacy on Capitol Hill, and will continue the fight in all three branches of the federal government. The final text of the order was released September 27 and is substantially similar to the draft, with one noteworthy change: if cities notify wireless providers that applications are incomplete, they will be able to restart, rather than toll, the shot clock for that specific application.
Here are five key takeaways for cities from the FCC’s vote:
- Cities Have an Image Problem
Cities have faced an upswing in preemption from state and federal governments, particularly on telecommunications issues. This latest preemption is just further evidence of an ongoing image problem for cities – namely that they are obstructions to business and to winning the “race to 5G,” rather than innovators and builders of strong communities. Commissioner Mike O’Rielly described local governance as consisting of “ridiculous fees and prolonged delays,” and Commissioner Brendan Carr, in his pre-vote statement, inaccurately depicted 5G deployment as a zero-sum battle between urban and rural areas, in which only preemption can save rural communities from the ambitions of large cities.
Despite the leadership of cities like San Jose, California and Lincoln, Nebraska in deploying small cell wireless facilities, wireless advocates have convinced many policymakers that city leaders are not the best people to make decisions about their own communities and streets. A Wall Street Journal editorial published the morning of the FCC meeting claimed that “U.S. cities are throttling deployment with extortionist fees…[and] self-serving behavior from local politicians.” The FCC’s vote, the many state bills preempting local authority passed in the last several years, and the introduction of the STREAMLINE Small Cell Deployment Act in the Senate demonstrate that cities need to overcome this bias against local leadership.
- Cities Need to Educate Their Legislators
However, federal policymakers can change their minds when they hear from their local leaders. FCC Commissioner Jessica Rosenworcel, who both affirmed and dissented in part on the preemption order, told her fellow commissioners that “If we want to speed the way for 5G service, we need to work with cities and states across the country because they are our partners.” Nine members of the House Energy and Commerce Committee, as well as senators from New York and Nevada sent letters to the FCC prior to its vote, urging the Commission not to hold the vote on this item, as it did not sufficiently incorporate the many objections raised by local governments. Commissioner Rosenworcel and the senators and representatives who objected to the preemption did so in no small part because of the hundreds of city officials who called and sent letters to Congress and the FCC describing how the order would harm their communities.
Very few members of Congress or their staff have personal experience with city administration, and even fewer have personal experience with managing telecommunications equipment in cities. Without helpful stories, data, and examples from local officials, these legislators have no evidence to counter the lobbying by wireless companies that claims cities need to be preempted to successfully deploy new technologies. While the FCC’s action may reduce some of the urgency felt by members of Congress to legislate on small cell deployment, it’s imperative for cities to keep educating Congress on how preemption widens, rather than narrows, the digital divide.
- Cities Should Strengthen Their Own Policies and Procedures
While NLC, its local association partners, and local governments around the country will fight the implementation of the order, cities should take a close look at their own policies and procedures around small cell deployment. Regardless of whether the order is implemented or not, small cell technology is here to stay, and cities need to prepare themselves to protect residents and streetscapes while pushing for the best deployment they can get for their communities.
In our recently-published Municipal Action Guide on Small Cell Wireless Technology in Cities, NLC identified some important best practices for cities to follow as they plan small cell deployment. In the face of new requirements for shorter shot clocks and stricter tests on aesthetic requirements, it is more important than ever for cities to work with community groups to determine and publish the specific requirements for successful deployment. These may include more detailed, neighborhood-by-neighborhood requirements regarding issues such as infrastructure density, color, or decorative pole requirements, to ensure that sensitive areas of the city are sufficiently protected in advance. Any requirements imposed on providers must be available publicly before applications are submitted, so finalizing these requirements should be a first step for most communities.
Cities should be cautious when working with providers on these proactive steps – while it is important to incorporate technical needs into design decisions, any pre-application consultation that could be considered mandatory will start the new, shorter shot clock timeline for application reviews. Cities should also consider updating requirements for other occupants of the rights-of-way to harmonize them with requirements for small wireless facilities, to ensure that no rights-of-way user can claim requirements are not neutrally applied.
- Cities Should Expect a Bumpy Road for Implementation
As many communities noted in their comments to the FCC opposing this decision, the new order is likely to increase, rather than decrease, litigation over wireless deployment. This is because the order contains little guidance and few definitions and offers a great deal of leeway to future judges in cases between local governments and wireless providers over interpreting the reasonableness of local fees and aesthetic requirements.
While this may have been intended to provide local governments with some degree of flexibility, this means that cities have little way to know what a “reasonable” consultant expense is if they do not have internal staff to manage small cell deployment, or what are “reasonable” aesthetic requirements, particularly as they relate to undergrounding requirements. Providers are likely to challenge local governments on these two points, particularly when a city sets rates at above the FCC-determined “safe harbor” rate of $270 per small cell, per year, or if meeting aesthetic requirements will increase the cost of a particular deployment.
Cities may also see an increase in proactive outreach by wireless providers or tower companies, informing them of what those companies see as the cities’ obligations under the new order. However, local governments should take care to consult with their municipal attorneys, state municipal leagues, and possibly state utility commissions to verify these claims before taking any new actions.
- Cities Can Fight Back
While the FCC’s vote represents another preemption blow for local governments, cities can fight back against this measure and others like it. NLC and our partners are pursuing administrative, legal, and legislative steps to stop the FCC’s overreach.
A city, or cities, will likely appeal the FCC’s order in a circuit court. Depending on that court’s decision, or if there are cases in multiple circuits with differing outcomes, the issue could move as high as the Supreme Court, as in the case of City of Arlington v. FCC. Finally, under the terms of the Congressional Review Act, Congress may choose to overrule the order within 60 legislative (e.g., when Congress is in session) days of the rule’s publication in the Federal Register. Use of the Congressional Review Act has grown in popularity in recent years but would still necessitate the building of substantial support on Capitol Hill by cities and their leaders.
About the Author: Angelina Panettieri is the Principal Associate for Technology and Communication at the National League of Cities. Follower her on twitter at @AngelinainDC.