In furtherance of its goal to expedite wireless broadband deployment, the Federal Communications Commission (“FCC”) is seeking comment on a Petition for Declaratory Ruling (“Petition”) filed by Mobilitie, LLC (“Mobilitie”), proposing that the FCC issue a ruling on streamlining wireless facilities siting policies.   This proceeding is of particular interest to wireless companies deploying small cells and distributed antenna systems (“DAS”), as one of its chief topics is promoting a level playing field for access to local rights-of-way (“ROWs”).  The deadline for filing comments is March 8, 2017.  Reply comments are due by April 7, 2017.

Mobilitie’s Petition

In its Petition, Mobilitie requests that the FCC adopt a declaratory ruling interpreting and clarifying Section 253(c) of the Telecommunications Act (“Act”), which provides that state and local governments may manage their ROWs and require “fair and reasonable compensation” from telecommunications providers, on a “competitively neutral and nondiscriminatory” basis, as long as such compensation is publicly disclosed.

Specifically, Mobilitie asks that the Commission clarify the meaning of Section 253(c) by issuing declaratory rulings on the following:

• “Fair and reasonable compensation” should mean that charges for ROW applications and access fees should be limited to fees that enable a locality to recoup the costs reasonably related to reviewing and issuing permits and managing ROWs.  Any additional fees should be prohibited as excessive.
• “Competitively neutral and nondiscriminatory” should mean that ROW access charges must not exceed charges imposed on other providers for similar access.
• Localities must disclose the ROW charges they have imposed on other providers to any provider seeking access to the same ROW.

FCC Seeks Comment on a Wide Range of Wireless Siting Issues

The FCC seeks comment not only on the issues Mobilitie teed up in its Petition, but on many other matters concerning wireless infrastructure deployment.  Noting that it has a responsibility to ensure that wireless network facilities deployment is not subject to unnecessary delays due to state and local siting review processes that may conflict with the Act, the FCC welcomes comments on these and other related issues:

• What types of local government action or inaction have the effect of delaying the introduction of new wireless services, obstructing the improvement of existing services, and/or increasing the barriers to market entry of prospective service providers?
• Details on the application processes for DAS and small cell siting applications, and how they could be improved and expedited.
• What are the key reasons why local authorities approve or deny siting applications, and why might some types of applications tend to be granted more than others?
• To what extent does litigation ensue as a result of denial of siting applications, and how long does it typically take a case to be resolved?
• What types of state or local government actions “prohibit or have the effect of prohibiting” the ability of an entity to provide personal wireless services or telecommunications services, in violation of Sections 253(a) and 332(c)(7) of the Act?  Would preventing a technological upgrade result in such a violation?
• What constitutes a “reasonable period of time” for a state or local government to process wireless infrastructure siting applications?   Should the timeframes vary based on the type of infrastructure involved?

Conclusion

This proceeding will undoubtedly result in rules and policies that will have far-ranging effects on how wireless infrastructure may be deployed, as well as how much authority state and local governments will retain regarding managing ROWs and various infrastructure that is now within their jurisdictions.  Numerous FCC releases during the past two and a half years strongly indicate that the agency wishes to be very active in expediting wireless broadband deployment.   For those reasons, and because the FCC has greatly expanded on the topics for which it invites comment in this proceeding, this is a golden, and perhaps last meaningful opportunity, for interested stakeholders to help shape wireless facility siting policies for decades to come.

Moreover, many other policy changes are likely to occur at the FCC under the incoming Trump administration.  For example, in a proceeding dealing with spectrum allocation for wireless broadband deployment (prediction # 4 in the linked article), the FCC is moving rapidly to allocate a large swath of unlicensed spectrum as part of its “three-tiered” spectrum sharing process in the 3.5 GHz band.   This is intended to open the door to a lot of small-scale service providers, and is being given priority under the likely new FCC Chairman.

The CommLaw Group has represented many clients before the FCC is matters including wireless equipment regulations and infrastructure siting rules and policies.   Our firm has experts in these matters that can assist with any questions you may have concerning this Petition for Declaratory Ruling and filing comments in this proceeding.   To learn more, please contact  Jonathan Marashlian at jsm@commlawgroup.com, or 703-714-1313; or Ron Quirk at req@commlawgroup.com, or 703-714-1305.