Ninth Circuit Issues Long-Awaited Decision on FCC 5G Infrastructure Order
By Eileen Keiffer
On August 12, 2020, a three-judge panel of the U.S. Ninth Circuit Court of Appeals issued a long-awaited decision on consolidated appeals of three separate FCC small cell infrastructure orders: the FCC’s Small Cell Order (2018), the Moratoria Order (2018), and the One Touch Make-Ready Order (2018). The Small Cell Order and the Moratoria Order limited local governments’ authority to regulate small cell facilities in the interest of hastening deployment. The One Touch Make-Ready Order was also aimed at facilitating quicker infrastructure deployment by providing easier access to existing poles.
The Court handed a partial victory to local governments by remanding portions the Small Cell Order that required aesthetic regulations be “no more burdensome” than those applied to other similar infrastructure, such as utility companies utilizing the rights-of-way. The Court held such regulation to be contrary to the statutory provisions that permit different regulatory treatment of 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). The panel also struck down as arbitrary and capricious the Small Cell Order’s requirement that local governments’ aesthetic regulations be objective (which had prevented regulations requiring, for example, that facilities be harmonious with the surrounding neighborhood). However, the Court did uphold the FCC’s requirement that local government must publish aesthetic regulations in advance and that such regulations be reasonable (meaning they must be technically feasible).
Unfortunately for local governments, the Court’s decision largely sided with the FCC. For example, the Court upheld the FCC’s limit on allowable fees for small cells on a cost-only basis, rejecting arguments that depriving local governments of rental income is a constitutional taking. The Court also upheld the FCC’s imposition of additional shot-clocks, and the FCC’s expansion of the shot clocks to include all permitting decisions, like building permits and not just zoning type ordinances. However, the Court did reject calls from the wireless industry to impose a “deemed granted” remedy for failure by local governments to meet the expanded permitting shot clocks.
As of the date of this blog post, it is unclear whether any party will request rehearing, that the case be reviewed by the entire Ninth Circuit, or will appeal to the U.S. Supreme Court. Cities should review their ordinances relating to small wireless facilities, especially if they have not yet adopted ordinances compliant with the 2018 Small Cell Order. Please contact Eileen Keiffer at Madrona Law Group if you have any questions or if we can be assistance in preparing a Small Cell Order compliant ordinance for your city. Eileen can be reached at Eileen@madronalaw.com or at (425) 201-5111, ext. 1.