Legal Corner: Potential Federal Changes Regarding Wireless Services May Impact Your Rights-Of-Way
Christina Estes-Werther, League General Counsel
On December 22, 2016, the Federal Communications Commission ("FCC") issued a Public Notice for Comment relating to siting (location) policies for small
cell infrastructure. The Notice was a result of a Petition from Mobilitie, LLC, a wireless provider located in Newport Beach, California. Mobilitie
is requesting that the FCC adopt a declaratory ruling defining certain terms that will allow Mobilitie and other wireless providers easier access to
public rights-of-way for wireless services.
Small Cells and Distributed Antenna Systems
According to the FCC's Public Notice, small cells are "low-powered wireless base stations that function like traditional cell sites in a mobile wireless
network, but, typically cover targeted indoor or localized outdoor areas ranging in size from homes and offices to stadiums, shopping malls, hospitals,
and metropolitan outdoor spaces." Distributed Antenna Systems ("DAS") are "networks that use numerous antennas (nodes), similar in size to small cells
that are connected to and controlled by a central hub," which means they are small and can be placed on utility poles, rooftops and other small structures
on private property or public rights-of-way. With these terms defined we can fully examine the Mobilitie Petition.
On November 15, 2016, Mobilitie, LLC filed a Petition for Declaratory Ruling with the FCC to define three terms in Section 253(c) of the Communications Act
of 1934 ("Act"). The provision in the Act states:
- Nothing in this section affects the authority of a State or local government to manage the public rights-of-way or to require fair and reasonable compensation
from telecommunications providers, on a competitively neutral and nondiscriminatory basis, for use of public rights-of-way on a nondiscriminatory basis, if the
compensation required is publicly disclosed by such government.
47 U.S.C. § 253.
Mobilitie has asked the FCC to interpret "fair and reasonable compensation," "competitively neutral and nondiscriminatory," and "publicly disclosed by such
government." These terms are undefined in the Act although appellate courts in various circuit courts have reviewed these provisions. Mobilitie is asking
the FCC to interpret these terms in a manner that may limit compensation to the locality for access to the public rights-of-way for their wireless services.
Fair and Reasonable Compensation
Mobilitie is asking the FCC to declare that certain charges are unlawful - specifically, that any one-time and recurring charges and fees cannot be assessed
to benefit the municipality and that fees be limited to actual costs of reviewing and issuing permits and managing the rights-of-way. The FCC is seeking
comment on whether these assertions can be substantiated and what other considerations the municipalities may be considering when assessing fees. Specifically,
the FCC would like input from municipalities on the appropriate criteria to define this term including why fees might be charged upfront or on a recurring basis,
the time necessary to review these applications, and any monitoring that may be required by the municipality to maintain compliance by the wireless providers.
Competitively Neutral and Nondiscriminatory
The Petition from Mobilitie requests that the FCC assume municipalities are presumptively discriminating if the municipality charges higher fees between different
parties although they recognize that some differences may occur. The Petition requests that a municipality be required to explain and justify any differences in
charges between different providers and types of facilities.
The FCC is seeking comment to determine if Mobilitie's requested definition is appropriate or if there is an alternative definition that would consider other factors
that are used to determine the costs assessed to providers, such as the time it takes for local governments to review the applications and the volume of applications
received by the municipality. The FCC requests that local governments comment on whether there is evidence of widespread discriminatory charges in their community.
Publicly Disclosed by the Government
Mobilitie requests that the FCC require municipalities to disclose the charges imposed on all carriers for access to their rights-of-way, including the calculation
formula and the frequency of the assessment. The FCC is soliciting comment from municipalities on whether there is an existing problem, where this problem may exist,
and if the problem is widespread. Municipalities may want to provide evidence to the FCC to dispute Mobilitie's contention that information is unavailable to the
The FCC is currently engaged in a fact-finding mission about the access and use of the rights-of-ways across the country as it relates to wireless services. Comments on
Mobilitie's Petition will be accepted until February 6, 2017 so the FCC can make a determination to balance the need of municipalities such as aesthetics and safety with
the demand for increased distribution and use of wireless services.
As the protector of rights-of-way, municipalities must maintain responsibility for their use, including taking care of the property for its residents. The FCC's objective
is to solicit public input on this important matter to all of our communities. Mobilitie's Petition and the FCC's Public Notice for Comment were sent to all the designated
city and town attorneys earlier this month in order to allow your city or town to provide input on the impacts this ruling may have on your community.
FCC Seeks Comment on Mobilitie Petition & Small Cell Deployment
League of Arizona Cities and Towns
1820 W. Washington St.
Phoenix, AZ 85007