March 14, 2017
Now is the time to make your voice heard. Small cell wireless facilities siting policy is under consideration by the FCC and its decisions are sure to have long term effects. A jurisdictional battle over how federal law applies to limit and define law established by local government has begun. At issue is the extent to which municipalities and state government may adopt laws that control the review process of wireless facilities siting applications, the fees charged for obtaining and maintaining the subject rights of way, and the limit of local authority to set requirements for gaining access to rights of way. The sword was drawn by Mobilitie, LLC with its FCC filing of a Petition for Declaratory Ruling on the matter (filed November 15, 2016).
Mobilitie stated in its petition that excessive and unfair fees are being charged by local jurisdictions for access to rights of way. It also contends that many localities unlawfully discriminate against wireless technology in the review of applications and the determination of fees. A state or local government is not precluded from imposing competitively neutral requirements or from managing public rights of way or requiring fair and reasonable compensation from a telecom provider, on a competitively neutral and nondiscriminatory basis, for use of public rights of way, if the compensation required is publicly disclosed by such government. Mobilitie is requesting that the FCC interpret these phrases to eliminate the ability of the local government to hinder wireless broadband deployment. Responding to Mobilitie’s petition, the FCC, on December 22, 2016, issued a Public Notice seeking comment on “Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting Policies.”
The FCC is using the requested declaratory ruling proceeding as an opportunity to wrestle with the issues surrounding the promotion of wireless infrastructure deployment with a focus on the siting policy for small cell sites. With the rollout of small cell densification by wireless providers, there has been a substantial increase in the number of siting applications for deployment of facilities under consideration by land-use authorities. The FCC has made clear that removing barriers to wireless infrastructure deployment is a top priority.
The FCC is basing its authority to remove regulatory barriers on federal statutes (Sections 253 and 332 of the Communications Act of 1934), which prohibit state and local governments from using unreasonable criteria in making decisions to control the “placement, construction, modification of personal wireless service facilities and to manage public rights of way” and allows the FCC to preempt state or local statutes, regulations, or legal requirements to the extent they prohibit the ability to provide telecommunication services within a state or between states.
The Commission is requesting both information and comment on several issues. To give you an idea, a few of the broader issues are listed below. The Commission is requesting:
For the extensive discussion and the detailed requests for comment, you may refer to the Public Notice.
Comment filings have escalated recently – of the 862 comments filed, 729 have been filed in the last 30 days. There is still time to affect the siting policy for small cell facilities by participating in this proceeding. The time for initial comments, March 8, 2017 has passed; however, the window for reply comments is still open but will close on April 7, 2017. If your company seeks to make comment, the link to the FCC comments form is here. Note that the proceeding number is #16-421. Be aware that comments, along with all information submitted, are publicly available on the internet for viewing.
Marina Lee is a legal analyst with Marlexar Research and writes about regulatory policy issues affecting the communications industry. You may contact her at firstname.lastname@example.org.