FCC Declaratory Ruling Bans Municipal Small Cell Moratoria

By J. Sharpe Smith, Senior Editor

August 6, 2018

O’Rielly [FCC Official Photo]

Tucked into the FCC’s effort to speed process and reduce the cost of attaching new network facilities to utility poles (one-touch make ready) was a declaratory ruling barring state and local governments from implementing moratoria on telecommunications services and facilities deployment.

The FCC’s press release on the item, which was approved at the August FCC open meeting, said moratoria are not allowed by the Communications Act because under Section 253(a), they “prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”

FCC Commissioner Michael O’Rielly was very emphatic in his opposition to moratoria, saying there is a long history of congressional opposition to moratoria on tower and antennas. O’Rielly said that moratoria are merely “mindless delay.”

“Let me make this clear for those local officials who may not have been listening in the past: NO MORATORIUMS; NO MORATORIUMS; ABSOLUTELY NO MORATORIUMS,” O’Rielly said in all capital letters in his written statement. “It is beyond me that we are still having to deal with this outrageous practice after so many years, especially given how important broadband can be to the very citizens residing in these areas.”

Rosenworcel [FCC Official Photo]

The lone Democrat on the Commission, Jessica Rosenworcel took issue with the declaratory ruling, saying that it lacked “the legal analysis.” She questioned the wisdom of ignoring the ability of local officials to set their own rules, such as the moratorium that is currently in place on laying fiber in coastal South Carolina during hurricane season.

“Going forward, three unelected officials sitting here today preempt these local policies because they believe Washington knows better,” Rosenworcel said. “We need to find a modern way to balance the needs for national deployment policies with local realities so that across the board government authorities support what we need everywhere—digital age infrastructure.”

O’Rielly said he realized the declaratory ruling was controversial and would probably be tested in court, but he welcomed the challenge to the FCC’s authority in this area. “Every ounce of Congressional authority provided to the Commission must be used as a counterforce against moratoriums,” he said.

Also during his statement, O’Rielly seemed to take a shot at former BDAC member San Jose Mayor Sam Liccardo, who created a $24 million digital inclusion fund as part of public/private relationships with carriers that want to deploy small cells.

“And, the record is replete with examples of such out-of-bound practices, such as digital inclusion funds, that unnecessarily create political slush funds and raise the cost of service for consumers,” O’Rielly said.

Moratoria Previously in FCC Cross Hairs

FCC’s dislike of moratoria is not new. Back in 2014, at the Wireless Infrastructure Show, then-Commssioner Ajit Pai outlined his plan for streamlining the regulatory treatment of DAS and small cells, curbing local moratoria and modifying the shot-clock rules.

Pai proposed to clarify that local moratoria on the approval of new wireless infrastructure violate section 332(c)(7) of the Communications Act, which states that applications should be processed within a reasonable period of time.

“And now some cities are trying to evade those limits by adopting moratoriums on the approval of new wireless infrastructure,” he said.

Actually, it wasn’t the first time O’Rielly has blasted the use of moratoria to impede the rollout of small cells. He pointed to moratoria by Florida municipalities during a meeting of the Broadband Deployment Advisory Committee (BDAC), last November, in Washington, DC.

“The barriers being imposed are not caused by a failure to collaborate, but a failure to heed to current law and a resistance to allow citizens access to modern communications unless certain localities impose their will or extract bounties from providers,” O’Rielly said.

O’Rielly said problem of local governments setting up regulatory environments that are hostile to small cells is getting worse, “despite the existence of [BDAC].”

J. Sharpe Smith
Senior Editor/eDigest
J. Sharpe Smith joined AGL in 2007 as contributing editor to the magazine and as editor of eDigest email newsletter. He has 29 years of experience writing about industrial communications, paging, cellular, small cells, DAS and towers. Previously, he worked for the Enterprise Wireless Alliance as editor of the Enterprise Wireless Magazine. Before that, he edited the Wireless Journal for CTIA and he began his wireless journalism career with Phillips Publishing, now Access Intelligence.