Section 253(c) of the Communications Act, as amended in 1996, prohibits any “state or local statute or regulation, or other state or local legal requirement” to “have the effect of prohibiting the ability of any entity to provide interstate or intrastate telecommunications” including wireless communications. This is commonly referred to as local government having barriers to entry. The FCC is asking for public input on ways in which the Commission promotes wireless infrastructure deployment through a declaratory ruling. Many wireless providers are deploying small cell and distributed antenna systems (DAS) to meet the needs for coverage and to increase capacity. The facilities used in these networks are smaller and less obtrusive than traditional cell towers and antennas, but must be deployed more densely to function effectively. This has led to substantial increases in volume of applications for deployment for local land-use authorities, and the number of applications will likely accelerate as mobile data traffic is expected to grow by five times by 2022.
Mobilitie, LLC petitioned the FCC to issue a declaratory ruling interpreting three phrases in §253(c) of the Communications Act of 1934 to speed the deployment of advanced wireless infrastructure. Mobilitie recommends the FCC interpret “fair and reasonable compensation” to mean only charges that enable a locality to recoup its costs related to issuing permits and managing the rights of way and that additional charges are unlawful. That “competitively neutral and nondiscriminatory” be interpreted as charges that do not exceed those imposed by other providers for similar access. And that “publicly disclosed by such government” obligate localities to make available the charges they previously imposed on others to a provider seeking access to the rights-of-way. Mobilitie thinks interpretation is necessary because they have dealt with varying types of fees from localities across the nation that seem exorbitant. Fees have included application fees ranging from $1,000 to $10,000; annual per-pole fees up to $30,000 for each pole; percentage-of-revenue fees which have exceeded what localities can charge cable providers under federal law; fiber fees which have ranged from $0.19 per foot per year to fees based on fair market value of adjacent private property; and third-party manager fees.
The FCC is interested in comment, including updated information to help the Commission evaluate whether further action is warranted. This includes which actions (or inactions) of local government have hindered introduction of new services, obstructed efforts to improve existing service, or deterred prospective providers from entering the markets. The Commission requests specific information and detailed explanations, with greater weight given to systematic data. Specifically, how much time elapses between filing an application and approval or denial? How often are applications approved or denied and on what basis?
The Commission wants to know if the locality’s action “materially inhibits or limits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment;” whether different presumptive timeframes are “reasonable” in the small cell context; and whether and how the Commission should interpret § 253(c).
Comments must be submitted by February 6, 2017, either through the electronic system – http://fjallfoss.fcc.gov/ecfs2/ – or mailed to the Commission’s Secretary, Office of the Secretary, Federal Communications Commission, 445 12th Street SW, Washington DC 20554. (If mailing, an original and one copy of each filing should be submitted).
James A. L. Buddenbaum has practiced law for more than 25 years with Parr Richey Frandsen Patterson Kruse LLP representing municipalities and businesses in utility, healthcare and general business sectors in both regulatory and transactional matters. Jim also has extensive experience in representing businesses in making large property damage and similar insurance claims.
The statements contained herein are matters of opinion for general information purposes only and should not be considered by anyone as forming an attorney client relationship or advice for any particular legal matter of the reader. All readers should obtain legal advice for any specific legal matters.