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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."

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