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The FCC last week released a DRAFT order, scheduled for a vote at its September 26 meeting, designed to dictate the process and fees that state and local governments must apply to small cell wireless antenna installations on government-owned poles and similar facilities, and on newly-constructed poles the wireless carriers want to install in state and local rights-of-way.  As currently drafted, the DRAFT order would establish shot clocks for small wireless facility review, and would declare that all fees must be cost-based.

Although 20 states have already enacted small cell legislation, some states have rejected small cell legislation, and numerous municipalities already have reached agreements with wireless carriers on the process and fees for wireless attachments and new pole installations, the FCC’s DRAFT order appears designed to override such legislation and agreements to the extent they fail to comport with the DRAFT order’s standards.

The DRAFT order would establish the following “shot clocks” for state and local review of small wireless facility applications:  60 days for collocation on preexisting structures, and 90 days for new builds.

The fees the DRAFT order addresses fees for access to public rights-of-way (ROW), and for attachments to government-owned property in the ROW, “such as light poles, traffic lights, utility poles, and other similar property.”  The DRAFT order would conclude that such fees violate the federal Communications Act’s prohibition on excessive state and local regulation unless:  “(1) the fees are a reasonable approximation of the state or local government’s costs, (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated competitors in similar situations.”

The DRAFT order would go even further, by specifying that the following fees presumptively would not violate the federal prohibition on excessive state and local regulation:  “(a) $500 for a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, and (b) $270 per Small Wireless Facility per year for all recurring fees, including any possible ROW access fee or fee for attachment to municipally-owned structures in the ROW.”

Nowhere in the DRAFT order does the Commission explain how its proposed action establishing shot clocks and fees for municipally-owned “utility poles” and “light poles” comports with the federal Pole Attachment Act, which exempts municipally-owned poles from FCC pole attachment regulation.  In addition, the DRAFT order’s restrictive provisions will not appeal to state and local governments, whose enthusiasm for the 5G rollout appears to be diminishing with every new ruling.

For more information, please contact Tom Magee (magee@khlaw.com; 202.434.4128)

On Friday, August 3, the FCC released its order adopting a One-Touch Make-Ready (OTMR) policy for attaching telecom and cable facilities to utility poles in the 30 states that don’t regulate pole attachments themselves. The FCC stated that it believes its action should help enable deployment of small cells and wireline backhaul for 5G services. However, Commissioner Rosenworcel, the only Democrat on the Commission, stated that she is concerned that the policy will slow down deployment because the Commission’s “definitions of simple and complex processes do not provide enough real-world guidance to attachers and utilities, setting the stage for disputes and delays.”

The order itself is problematic for a number of reasons, including those raised by Commissioner Rosenworcel.

Many of the provisions do not appear well grounded in the reality of electric utility operations, and in practice might not serve the Commission’s goals of promoting broadband and 5G services.  For example, the public safety, worker safety, and reliability implications of losing control over the electric space cannot be overestimated.  While the final order makes helpful changes to address certain concerns expressed by our Coalition of Concerned Utilities in this proceeding, we would much prefer that this electric space self-help remedy be removed entirely.

For more information, please contact Tom Magee (magee@khlaw.com; 202.434.4128) or Tim Doughty (doughty@khlaw.com; 202.434.4271).