Court Upholds Most of FCC’s 5G Deployment Dereg

Says FCC had authority and decisions were not arbitrary or capricious

A federal appeals court has upheld most of the FCC’s orders speeding the deployment of cell service buildouts by easing regulations on those 5G deployments, including pole attachments and various local reviews of buildouts. Specifically upheld were the Small Cell Order, the Moratoria Order, and the One Touch Make-Ready Order, all parts of the FCC’s Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure order. 

Over the objections of local government officials and the reservations of Democratic commissioner Jessica Rosenworcel, the FCC voted in September 2018 to streamline the path to small cell deployment, including the rules on site reviews, billing it as crucial to the rollout of 5G wireless service, an FCC and Trump Administration priority.  

The September decision limited state and local government fees for wireless infrastructure deployment to reasonable costs for processing applications and managing rights-of-way, including specific fee levels for small deployments. It also provided guidance on when an aesthetic or underground requirement, or other state or local regulation on deployment, was an effective prohibition on the service.

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It established a shot clock for decisions on small wireless facilities (60 days for collocation on preexisting structures and 90 days for new builds), codified other existing shot clocks; 3) made all state and local authorizations for deployment of personal wireless service subject to those clocks, and 4) concluded that a failure to make those shot-clock deadlines is a “presumptive prohibition on the provision of services.”

A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit said that, given the deference owed the FCC in interpreting Telecommunications Act, the FCC’s orders, with the exception of a provision on asethetic regulations in the Small Cell Order, was within its authority and not arbitrary and capricious. 

The FCC had said that aesthetics-related local regs on small cells hda to be the same as those on other types of communications services, but the court said the statute made clear there could be different types or regs for different services. It also said the FCC’s requirement that aesthetic criteria must be ‘objective’ was not sufficiently explained. 

Writing for the majority (it was unanimous with one partial dissent), Judge Mary M. Schroeder said the FCC was dealing with “myriad” issues stemming from ” application of a twentieth century statute to twenty-first century technology.” 

The order had been challenged by a host of local governments, utilities and others. Oral argument had been held Feb. 10. 

“Today’s decision is a massive victory for U.S. leadership in 5G, our nation’s economy, and American consumers,” said FCC Chairman Ajit Pai. “The court rightly affirmed the FCC’s efforts to ensure that infrastructure deployment critical to 5G—a key part of our 5G FAST Plan—is not impeded by exorbitant fees imposed by state and local governments, undue delays in local permitting, and unreasonable barriers to pole access. The wind is at our backs: With the FCC’s infrastructure policies now ratified by the court, along with pathbreaking spectrum auctions concluded, ongoing, and to come, America is well-positioned to extend its global lead in 5G and American consumers will benefit from the next generation of wireless technologies and services.”

The decision was getting a lot of applause from communications and computer companies and their Washington representatives. 

“Now more than ever, local communities need faster, better, and more affordable internet,” said INCOMPAS CEO Chip Pickering. “The Ninth Circuit’s decision today takes millions of neighborhoods one big step closer to bringing more competition to town. 

Related: House Dems Seek Delay of FCC 5G Infrastructure Vote

“By upholding the ‘one-touch, make-ready’ deployment policies that our association has long championed, the court is giving the green light to new builders and helping to clear the deck of potential anti-competitive roadblocks that hold back 5G.   

“We wish to congratulate the FCC, including Chairman Ajit Pai and Commissioner Brendan Carr, who helped lead this fight.” 

“I am pleased that the Ninth Circuit affirmed the wireless infrastructure reforms we adopted in September 2018,” said Commissioner Carr, who passed the praise on down. “I thank the Commission staff who carefully crafted the order, and I congratulate the Office of General Counsel for their successful defense of our work.” 

“This is an extremely important victory for American consumers and the nation’s economy,” said Meredith Attwell Baker, president of CTIA, the wireless association. “The court got it right, correctly affirming the FCC’s authority to establish reasonable guardrails to guide both the wireless industry and local governments in their shared goals of speeding the deployment of next-generation wireless networks and maintaining U.S. leadership in the emerging 5G economy.” 

“Today’s Ninth Circuit decision is a win for the wireless industry, and more importantly, a win for consumers, who will benefit from more streamlined and efficient deployment of 5G networks,” said Competitive Carriers Association President Steven K. Berry. “The Court’s decision allows wireless carriers to continue to work with state and local governments to deploy next-generation networks and close the digital divide, while importantly ensuring that outlier regulations do not inhibit deployment. 

“I thank Chairman Pai for supporting and adopting these infrastructure orders, and particularly applaud Commissioner Carr’s leadership on infrastructure reform. I also commend the FCC’s Office of General Counsel for its vigorous defense of these important orders.”