FCC Releases its Anticipated Small Cell Order

On September 27, 2018, the FCC released its much-anticipated order governing small cell deployment. Most significantly, the order set “presumptively reasonable fees” and a presumptively reasonable “shot clock” governing application processing time.

Small Cell Fees

The FCC concluded that small wireless facilities right-of-way (“ROW”) access fees, fees for the use of government property in the ROW, and application fees must meet three requirements:

  • the fees must be a reasonable approximation of the state or local government’s costs,
  • only objectively reasonable costs may be factored into those fees, and
  • the fees may be no higher than the fees charged to similarly-situated competitors in similar situations.

The FCC stated that the following fees are presumptively reasonable:

  • $500 for non-recurring fees, including a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, or $1,000 for non-recurring fees for a new pole intended to support one or more Small Wireless Facilities; and
  • $270 per Small Wireless Facility per year for all recurring fees, including any possible ROW access fee or fee for attachment to municipally-owned structures in the ROW. ¶79

Small Cell Shot Clock

With regards to the shot clock, the FCC determined that two review periods are acceptable: 60 days for review of an application for collocation of small wireless facilities using a preexisting structure and 90 days for review of an application for attachment of small wireless facilities using a new structure.  The FCC expressly stated that whether or not an application is “batched”—that is, whether the application includes requests for multiple facilities—has no impact on the shot clock. Thus, in the case of an application for 30 small cell facilities using a preexisting structure, the locality must review and act upon the entire application within 60 days—the time does not increase due to batching.

The Fees and Shot Clock Are Presumptive, Not Mandatory

Note that both the rules governing fees and governing the shot clock are presumptive rules. For example, in an action by a small cell provider to force a municipality to use the FCC’s presumptive fees, the municipality can argue that a local variance in costs justifies a higher cost, which could be upheld by a court.

Other Issues

The FCC’s order addresses other topics affecting small cell providers, such as local ordinances governing aesthetics, undergrounding rules, and minimum spacing rules. The FCC’s Order may also preempt existing state and local laws governing ROW use for small cell technology deployment.  Court challenges are expected from state and local governments.

National Verifier for Lifeline Hard Launch on November 2nd

The National Verifier for Lifeline service providers hard launches on November 2nd for Colorado, Mississippi, Montana, New Mexico, Utah, and Wyoming.  There was a soft launch on October 15th for Guam, Hawaii, Idaho, New Hampshire, North Dakota and South Dakota.  Here is a link for the USAC webpage that describes the national verifier:

https://www.usac.org/li/tools/national-verifier/default.aspx

Service providers in these states and territory can initiate eligibility checks using the National Verifier service provider portal or by sending paper forms and supporting eligibility documentation to the Lifeline Support Center. Service providers have the option to continue using their legacy eligibility checking procedures during the soft launch period.

Changes to the BON’s Rules on Minor Incidents after Sunset Review

This is the seventh part in an ongoing series in which we review some of the changes to Board of Nursing (BON) rules after its recent Sunset review. On March 2, 2018, the Board of Nursing proposed changes to Rule 217.16 regarding Unprofessional Conduct. These rules have not yet become effective.

Unlike the other rule changes discussed in this series, these rule changes were not in response to the Sunset Commission’s review, although they are similar in nature to those changes. Instead, these changes were the result of the BON’s internal determination that there was confusion over when a nursing practice error was a “minor incident” that need not be reported to the BON.

Subsection (b) of the rule revises the rule’s stated purpose. Most significantly, it explicitly notes that “this rule is not intended to apply to employment issues that are unrelated to the practice of nursing, such as time, attendance, dress code, etc.” This is consistent with other changes made in response to the Sunset Commission in focusing the investigatory process on whether or not a nurse is competent at nursing itself, not other issues. Additionally, the purpose explicitly notes that the rule intends to address when a nurse’s conduct is “subject to mandatory reporting requirements,” whereas previously the rule stated it “is intended to provide guidance” in evaluating when a nurse’s conduct “would pose a risk of harm to patients or others and should be reported to the board.” This clarification explicitly ties the purpose of the rule to an expectation of behavior (mandatory reporting) that was not previously present.

Likewise, the BON eliminated some of the vaguer bases of required reporting, including the following three reasons from subsection (c):

  • whether the nurse “lacked a conscientious approach to or accountability for his/her practice;”
  • whether the nurse “lacked the knowledge and competencies to make appropriate clinical judgments and such knowledge and competencies cannot be easily remediated;” or
  • whether the nurse “indicates the nurse has engaged in a pattern of multiple minor incidents that demonstrate the nurse’s continued practice would pose a risk of harm to patients or others.”

The remaining reasons (revised into new subsection (h)) for reporting are all firmly tied to practice behavior, and, in many cases, directly to the Nursing Practice Act (NPA) or BON rules:

  • conduct that ignores a substantial risk that exposed a patient or other person to significant physical, emotional or financial harm or the potential for such harm;
  • conduct that violates the Texas Nursing Practice Act or a Board rule and contributed to the death or serious injury of a patient;
  • a practice-related violation involving impairment or suspected impairment by reason of chemical dependency, intemperate use, misuse or abuse of drugs or alcohol, mental illness, or diminished mental capacity;
  • a violation of Board Rule 217.12 with actions that constitute abuse, exploitation, fraud, or a violation of professional boundaries; or
  • actions which indicate that the nurse lacks knowledge, skill, judgment, or conscientiousness to such an extent that the nurse’s continued practice of nursing could reasonably be expected to pose a risk of harm to a patient or another person, regardless of whether the conduct consists of a single incident or a pattern of behavior.

If you would like to read more about these rule changes, you can find more information at the Sunset website.

Changes to the BON’s Rules on Removing Disciplinary Action after Sunset Review

This is the sixth part in an ongoing series in which we review some of the changes to Board of Nursing (BON) rules and law after its recent Sunset review. During the Sunset process, the Texas legislature decided that the BON should be required “to remove a nurse’s disciplinary action from the board’s website and the public coordinated licensure information system if the nurse and action meet certain criteria.” This led to the legislature revising Texas Occupations Code § 301.1583, which required disciplinary action to be removed from the BON’s nurse licensure verification page if five conditions are met:

  1. the disciplinary action is the only disciplinary action taken against the nurse;
  2. the disciplinary action was taken by the board for a violation that is not related to the practice of nursing;
  3. the disciplinary action did not result in the suspension or revocation of, or the probation of the suspension or revocation of, the nurse’s license;
  4. the disciplinary action does not provide any indication that continued practice by the nurse may risk harm to a patient; and
  5. the nurse has successfully completed the requirements imposed by the board in the disciplinary order related to the disciplinary action.

Likewise, the provision requires that the BON remove the same information from the coordinated licensure information system if the same conditions are met.

Nurses often state that having a practice violation on their record interferes with their ability to find work. The removal of these marks from nurse’s records will help many nurses find gainful employment.

If you would like to read more about the Sunset process, you can do so at the Sunset website.

Changes to the BON’s Rules on Administrative Hearings after Sunset Review

This is the fifth part in an ongoing series in which we review some of the changes to Board of Nursing (BON) rules and law after its recent Sunset review. On December 8, 2017, the Board of Nursing proposed changes to Rule 217.16 regarding Unprofessional Conduct. These rules became effective on February 25, 2018. The changes made were consistent with the Texas state legislature’s decision to “[p]rohibit the board from charging a nurse for the administrative costs of conducting an administrative hearing and changing an administrative law judge’s findings of fact or conclusions of law in issuing a disciplinary order.”

Previously, after an Administrative Law Judge (ALJ) proposed a decision, the BON would have an opportunity to change the decision at a Board meeting under Section 58(e) of the Texas Administrative Procedure Act. Thus, even if an ALJ decided in favor of the nurse, the BON could have still changed the decision and issue an order against the nurse. Under the revised Texas Occupations Code § 301.459, the ALJ determines the Findings of Fact and Conclusions of Law, and the BON may not change them. Instead, the BON has the sole authority and discretion to determine the appropriate action or sanction, although the ALJ may recommend a sanction.

This change will benefit nurses who argue cases before SOAH. In FosterDanowsky’s experience, state licensing Boards benefit from two “bites at the apple” in terms of punishing or revoking licensed professionals: once in front the ALJ, and a second time when the Board reviews the ALJ’s decision. This will mean that nurses will now face fewer opportunities to be sanctioned by the BON.

If you would like to read more about these rule changes, you can find more information at the Sunset website.