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.