On September 26, 2018, the Commission adopted the Declaratory Ruling and Third Report and Order (“Ruling” and “Order”) in the Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment proceeding in the September Open Meeting (FCC 18-133, WT Docket Nos. 17-79, 17-84). The Ruling clarifies the scope and meaning of the effective prohibition standard of Sections 253 and 332 of the Communications Act as they apply to state and local regulation of wireless infrastructure deployment, and concludes that Sections 253 and 332(c)(7) limit state and local governments to charging fees that are no greater than a reasonable approximation of their costs for processing applications and for managing deployments in the rights-of-way. It also provides guidance on certain state and local non-fee requirements. The Order establishes a new set of “shot clocks” for state and local approvals of Small Wireless Facilities, and also concludes that a failure to act within the new small wireless facility shot clock constitutes a presumption prohibition on the provision of services.

There were several changes made to the adopted Declaratory Ruling and Order from the previously released Draft Ruling and Draft Order. The notable (generally non-substantive) changes are as follows:

  • Added additional legal authority for its decisions in an number of areas regarding its adoption of the “materially inhibit standard,” particularly in paragraphs 41, 42 and 64 of the Order.
  • Clarified that FCC decisions regarding Sections 253 and 332 do not exempt existing agreements from the statutory requirements that it interprets in the Ruling.
    • The Commission notes, however, that this Ruling’s effect on any particular existing agreement will depend upon all the facts and circumstances of that specific case, and without examining the particular features of an agreement, including any exchanges of value that might not be reflected by looking at fee provisions alone, the Commission cannot state that the decision does or does not impact any particular agreement entered into before the decision.
  • Added to paragraph 79 regarding permissible fees that $1,000 for non-recurring fees for a new pole (i.e. not a collocation) is intended to support one or more Small Wireless Facilities.
  • Clarified standards for aesthetic requirements, explaining that such requirements “must incorporate clearly-defined and ascertainable standards, applied in a principled manner – and must be published in advance,” and expects aesthetics standards to be published no longer than 180 days after publication in the decision in the Federal Register.
  • Added language clarifying what types of scenarios would demonstrate a “likelihood of success” in cases requesting preliminary or permanent injunctive relief.
  • Implemented a modified tolling system (from what was noted in the draft order), such that the siting authority will have 10 days from the submission of an application to determine whether the application is complete. The shot clock would reset once the applicant submits the supplemental information requested by the siting authority.

On October 15, 2018, the Commission published the Declaratory Ruling and Third Report and Order in the Federal Register therefore establishing the following effective date for changes made to the infrastructure siting review process:

The Declaratory Ruling and Order, and the rule changes made therein, are effective January 14, 2019. States and localities will have 180 days from today (April 13, 2019) to publish aesthetic requirements and standards consistent with the Declaratory Ruling.

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