Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

New York Real Estate Law ReporterFeaturesCommunications and MediaLandlord Tenant LawLitigationRegulation

Ninth Circuit Upholds Most FCC Restrictions on Local Government Review of Wireless Installations

By Steven M. Silverberg and Katherine Zalantis
October 01, 2020

The Ninth Circuit Court of Appeals' recent decision in City of Portland v. Unites States, No. 18-72689 (9th Cir. 2020), significantly affects the ability of local governments to regulate the installation of so called "small cell" wireless facilities and addresses the ability of wireless providers to utilize utility poles. The underlying FCC orders issued in 2018 (the Orders) addressed issues arising from developing 5G broadband technology. The City of Portland upholds most, but finds some of the Orders overbroad. The decision contains nine rulings on the challenged Orders, and this Article will focus on those having the most significant implications for 5G deployment and state and local regulations. The decision rests upon the FCC's authority created by the Telecommunications Act of 1996 (the Act) promulgated to address issues arising out of the then new wireless telecommunications industry. The Act states in pertinent part that the FCC is authorized: "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)."

The FCC found that state and local fees could act as an impediment to the installation of facilities, in violation of the Act. Therefore, the Orders limited fees to a "'reasonable approximation of the state or local government's costs' of processing applications and managing the rights-of-way." Fees were declared presumptively reasonable at $500 initially and $250 annually thereafter for each facility. Fees over those amounts require that the municipality demonstrate its costs.

The FCC also found that aesthetic requirements materially inhibited deployment of small cell facilities. Therefore, restrictions must be: "(1) reasonable, (2) no more burdensome than requirements placed on other facilities and (3) objective and published in advance." Restrictions must be "technically feasible and reasonably directed to avoiding or remedying the intangible public harm of unsightly or out-of-character deployments."

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
Bonus Content: How Emerging Technologies Are Impacting IP: A Chat With Legalweek Speaker Ryan Phelan Image

A Q&A with conference speaker Ryan Phelan, a partner at Marshall, Gerstein & Borun and founder and moderator of legal blog PatentNext, to discuss how courts and jurisdictions are handling novel technologies, the copyrightability of AI-assisted art, and more.

Overview of Regulatory Guidance Governing the Use of AI Systems In the Workplace Image

Businesses have long embraced the use of computer technology in the workplace as a means of improving efficiency and productivity of their operations. In recent years, businesses have incorporated artificial intelligence and other automated and algorithmic technologies into their computer systems. This article provides an overview of the federal regulatory guidance and the state and local rules in place so far and suggests ways in which employers may wish to address these developments with policies and practices to reduce legal risk.

Is Google Search Dead? How AI Is Reshaping Search and SEO Image

This two-part article dives into the massive shifts AI is bringing to Google Search and SEO and why traditional searches are no longer part of the solution for marketers. It’s not theoretical, it’s happening, and firms that adapt will come out ahead.

While Federal Legislation Flounders, State Privacy Laws for Children and Teens Gain Momentum Image

For decades, the Children’s Online Privacy Protection Act has been the only law to expressly address privacy for minors’ information other than student data. In the absence of more robust federal requirements, states are stepping in to regulate not only the processing of all minors’ data, but also online platforms used by teens and children.

Revolutionizing Workplace Design: A Perspective from Gray Reed Image

In an era where the workplace is constantly evolving, law firms face unique challenges and opportunities in facilities management, real estate, and design. Across the industry, firms are reevaluating their office spaces to adapt to hybrid work models, prioritize collaboration, and enhance employee experience. Trends such as flexible seating, technology-driven planning, and the creation of multifunctional spaces are shaping the future of law firm offices.