Ninth Circuit Rules For FCC in 5G Case Brought by Cities

The agency’s plans to speed the rollout of 5G across the country is helped by a major win in appeals court.    

The Federal Communications Commission (FCC) has prevailed in a United States (U.S.) appeals court against a number of cities and companies that were seeking to block implementation of three 2018 orders to speed the implementation of 5G. The court ruled against the FCC only with respect to aesthetic regulations as it pertains to siting 5G cells. The agency trumpeted the ruling as allowing its plans for the development of 5G to move forward in a way that will help the United States win the race to 5G.

In August 2018, the FCC adopted its Third Report and Order and Declaratory Ruling on “Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment” that contain the three orders challenged in federal court: Small Cell Order, the Moratoria Order, and the One Touch Make-Ready Order. The FCC explained

The challenge for policymakers is that the deployment of these new [5G] networks will look different than the 3G and 4G deployments of the past. Over the last few years, providers have been increasingly looking to densify their networks with new small cell deployments that have antennas often no larger than a small backpack. From a regulatory perspective, these raise different issues than the construction of large, 200-foot towers that marked the 3G and 4G deployments of the past. Indeed, estimates predict that upwards of 80 percent of all new deployments will be small cells going forward. To support advanced 4G or 5G offerings, providers must build out small cells at a faster pace and at a far greater density of deployment than before.

FCC Chair Ajit Pai claimed in his press release:

Today’s decision is a massive victory for U.S. leadership in 5G, our nation’s economy, and American consumers. 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.

In relevant part of the opinion, the United States Court of Appeals for the Ninth Circuit summarized the dispute and its decision:

  • Before us are three FCC orders, issued in 2018, that deal with myriad issues arising from the application of a twentieth century statute to twenty-first century technology. The two orders we deal with first are known as the Small Cell Order and the Moratoria Order. Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 FCC Rcd. 9088 (2018) [hereinafter Small Cell Order]; Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 FCC Rcd. 7705, 7775–91 (2018) [hereinafter Moratoria Order]. The Orders spell out the limits on local governments’ authority to regulate telecommunications providers.
  • The FCC’s statutory authority for limiting local regulation on the deployment of this technology is contained in Sections 253(a) and 332(c)(7) of the Act and reflects congressional intent in 1996 to expand deployment of wireless services. Those provisions authorize the FCC to preempt any state and local requirements that “prohibit or have the effect of prohibiting” any entity from providing telecommunications services. See 47 U.S.C. § 253(a), (d).
  • Many of the issues before us concern whether challenged provisions constitute excessive federal regulation outside the scope of that congressional preemption directive, as understood by our Circuit’s leading case interpreting the statute, Sprint Telephony PCS, L.P. v. County of San Diego, 543 F.3d 571 (9th Cir. 2008) (en banc). We conclude that, given the deference owed to the agency in interpreting and enforcing this important legislation, the Small Cell and Moratoria Orders are, with the exception of one provision, in accord with the congressional directive in the Act, and not otherwise arbitrary, capricious, or contrary to law. See 5 U.S.C. § 706(2)(A).
  • The exception is the Small Cell Order provision dealing with the authority of local governments in the area of aesthetic regulations. We hold that to the extent that provision requires small cell facilities to be treated in the same manner as other types of communications services, the regulation is contrary to the congressional directive that allows different regulatory treatment among types of providers, so long as such treatment does not “unreasonably discriminate among providers of functionally equivalent services.” 47 U.S.C § 332(c)(7)(B)(i)(I). We also hold that the FCC’s requirement that all aesthetic criteria must be “objective” lacks a reasoned explanation.
  • The third FCC order before us is intended to prevent owners and operators of utility poles from discriminatorily denying or delaying 5G and broadband service providers access to the poles. Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Inv., 33 FCC Rcd. 7705, 7705–91 (2018). Known as the “One- Touch Make-Ready Order,” it was issued pursuant to the Pole Attachment Act originally passed in 1978 and expanded in the wake of the Telecommunications Act of 1996. 47 U.S.C. § 224. Section 224 of that Act allows utilities to deny access to pole attachers under some circumstances. Several utilities object to discrete aspects of the One-Touch Make-Ready Order. We uphold the Order, concluding that the FCC reasonably interpreted Section 224 as a matter of law, and the Order is not otherwise arbitrary or capricious.

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Image by ADMC from Pixabay

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