Bar News Masthead

Environmental, Telecomm, Utilities & Energy Law

September 16, 2020

By Will Dodge

In my article for last year’s NH Bar News telecommunications edition, I wrote about some important potential setbacks for 5G deployment, all associated with a case from the D.C. Circuit concerning new Federal Communications Commission (“FCC”) regulations designed to stream- line federal environmental requirements for small cell wireless facilities on utility poles.

Earlier this month, another very important decision—City of Portland  v.  U.S., 2020 WL 4669906 (9th Cir., Aug.12, 2020)—largely affirmed recent FCC orders limiting the powers of municipalities and public utilities to proscribe 5G deployment in public rights of way and utility corridors. The decision and the orders set the table for how 5G is likely to be rolled out in New Hampshire in the near future.

Small Cell Technology and 2018 FCC Orders

5G technology—named as the fifth

generation of cellular wireless since pas- sage of the 1996 Telecommunications Act (“TCA”)—provides increased bandwidth in comparison to other types of wireless technology, allowing more devices to be connected to the network at one time. This allows speeds that ensure near instantaneous responses between servers and connected devices.

Small cell facilities for 5G consist of miniaturized antennas and other operating equipment or “street furniture” mostly mounted on poles, streetlights and buildings. Although 5G technology transmits data at exceptionally fast speeds, it does so over short distances, meaning that full deployment requires a greater number of sites than is true of macrosites (e.g., towers, rooftop arrays).

Concerned over the number of sites needed to realize the benefits of 5G, the FCC issued two orders and corresponding regulations in 2018 pursuant to its authority under the TCA in an attempt to remove perceived barriers to 5G.

In Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd. 7705 (Aug. 2018) (the “Moratoria Or- der”), the FCC imposed limits on public and private utilities’ ability to restrict access to wireless carrier use of utility poles and related infrastructure, while also banning express and “de facto” municipal and state moratoria on 5G siting.

In Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, 33 FCC Rcd. 9088 (Sept. 2018) (the “Small Cell Or- der”), the FCC imposed limits on municipal regulation of 5G in rights of way and elsewhere, including presumptive caps on permitting and licensing fees, rules for aesthetics, “shot clocks” for application processing, and prohibitions on concerns over radiofrequency emissions (“RFE”) as a basis for denying applications.

A large array of municipalities and public utilities from around the country challenged the two FCC orders pursuant to the federal Administrative Procedures Act. Wireless carriers and industry groups joined to defend the FCC, though included a challenge to the FCC’s failure to create  a “deemed approved” remedy to address a municipality’s late issuance of permits for 5G facilities.

Key FCC Provisions Upheld

The Ninth Circuit largely upheld the Small Cell Order, finding that the FCC and the carriers had persuasively established that new regulations were needed to prevent, among other things, large municipalities from imposing costs and legal hurdles that would effectively hinder 5G technology from being built outside of major urban areas due to costs. Key provisions upheld in both the Small Cell Order and the Moratorium Order included the following:

“Although 5G technology transmits data at exceptionally fast speeds, it does so over short distances, meaning that full deployment requires a greater number of sites than is true of macrosites (e.g., towers, rooftop arrays).”

Municipal Fees. All fees for 5G deployment must be (1) a reasonable approximation of the state or local government’s costs (2) with only objectively reasonable costs factored into the fees, (3) with fees no higher than those charged to similarly- situated competitors in similar situations. Fees are presumptively lawful if less than

$500 for each 5G site application, and less than $270 per year per site for recurring fees. Any fees above these levels can be justified only if the municipality’s actual costs are shown to exceed the presumptive levels.

Processing Time. State and local governments have 60 days to decide applications for 5G installations on existing infrastructure, and 90 days for all other applications (e.g., new poles). “Applications” in this context includes not just zoning approvals, but also building or construction permits and any required right-of-way or municipal pole attachment license. The time limits are presumptive, so a municipality can demonstrate reasons for extending the decision time  beyond the “shot clocks.”  An applicant’s recourse involves seeking an injunction in federal district court, with no “deemed approved’ remedy being added to the regulation.

Access to Municipal ROW and Infrastructure.  In controlling access to rights-of-way, municipalities are deemed to be acting in a regulatory capacity for the public interest (not as property owners); accordingly, public rights of way and other public ROW infrastructure must be made available for wireless facility deployment .

RFE.  Based on an updated version  of the FCC’s 1996 exposure standards, municipal laws for 5G are subject to the prohibition against regulating facilities on the basis of concerns over RFE, except for demonstrating that the FCC standards are met.

Moratoria. Municipalities cannot enact express or de facto moratoria over 5G facilities, with “de facto” being laws that unreasonably or indefinitely delay deployment. Municipalities can maintain general regulations regarding construction scheduling without being preempted.

One Touch Make Ready. Under the Moratoria Order, 5G infrastructure providers have greater access to poles owned by public utilities through rules relating to make-ready work, including “overlashing” disputes, avoiding costs of remedying prior safety violations by  others  on an existing pole, securing rate parity with wireline pole attachments, and allowing access to non-utility workers to the up- per sections of poles (though only using utility-approved contractors).

The Ninth Circuit also rejected Fifth and Tenth Amendment challenges to both Orders, finding that the FCC had provided just compensation to municipalities through the reasonable fee presumptions, and concluding that the FCC had sufficient authority under the Commerce Clause and the TCA to limit the manner in which 5G siting is regulated at the state and local level.

Aesthetics Regulations Vacated

In one area — aesthetics — the Ninth Circuit vacated the FCC’s regulation in the Small Cell Order as “arbitrary and capricious,” and remanded to the FCC for further consideration.

The regulation had stated that municipal aesthetic requirements for 5G would not be preempted if “(1) reasonable, (2)  no more burdensome than those applied to other types of infrastructure deployments (e.g., color, shape, size); (3) objective;  and (4) published in advance.” The Ninth Circuit took issue with “other types of infrastructure deployment,” finding that this standard exceeded Congress’s TCA provision ensuring that municipalities did not unreasonably discriminate among functionally equivalent services.

The Ninth Circuit concluded that different aesthetic standards could apply to different types of equipment and technology, provided the standards were reason- able. The Ninth Circuit also concluded that an “objective” requirement was overly broad, finding instead that regulations tailored to preserve characteristics of particular neighborhoods would not materially inhibit, materially limit, or effectively prohibit 5G technology. Moreover, “malleable and open-ended” aesthetic criteria could be used at the municipal level to evaluate a 5G site, provided the regulations are technically feasible and reason- ably directed at remedying “the intangible public harm of unsightly or out-of-character deployments.”

Effect on New Hampshire

Wireless Deployment

The City of Portland case is binding law nationwide for the moment,  though an appeal to the U.S. Supreme Court appears likely before all of the dust settles. As I remarked last year, New Hampshire has not yet seen widespread small cell deployment, though there have been in- roads made in a handful of municipalities. COVID-19 has, to some degree, interfered with even the best laid plans for infrastructure improvements, beyond the legal questions surrounding the FCC’s 5G orders. But with the FCC making funds available for 5G technology deployment for rural areas, and with at least some of the legal issues on the FCC Orders now re- solved, we should expect to see small cell facilities in New Hampshire communities sometime in the near future.

William J. Dodge practices telecommunications, energy, and real estate law in NH and VT, and chairs the Regulated Entities Group at DRM PLLC. He also serves on the Board of Directors for the New England Wireless Association