US Court of Appeals Rules on Challenges to FCC Order Regarding Small Cell Regulation

August 17, 2020

The Court of Appeals eased restrictions on city-imposed aesthetic requirements while affirming restrictions related to fee caps, shot clocks, and moratoriums on small cell applications.

The 9th U.S. Circuit Court of Appeals issued an opinion in the matter of City of Portland v. United State of America Federal Communications Commission on Aug. 12.  Most notably, the case requested review of the FCC’s Small Cell Order and Moratoria Order, which limit local government authority to regulate small cell wireless facilities.

The court modified aesthetic requirements required by cities related to small cell deployment. In addition, the court affirmed presumptive fee limits, shot clocks, and moratorium limitations placed by the FCC.

Aesthetic requirements

The Small Cell Order required aesthetic requirements related to small cell facilities to be treated in the same manner as other types of communications services and for cities to publish objective aesthetic requirements for such facilities.

The Court of Appeals ruled that small cell facilities are different from other facilities and therefore aesthetic requirements can be different from other communication services. In addition, the court ruled that aesthetic requirements can include subjective standards that result in a public benefit.

While aesthetic standards must still be published, cities should review their standards to ensure they meet the aesthetic goals of the community.

Fee limits

The court, in a 2-1 decision, also upheld presumptively reasonable fee limits set by the Small Cell Order. The court upheld the safe harbor fee limits of $500 for applications and $270 for recurring fees. The opinion does not modify the fee caps set by Minnesota Statutes, section 237.163, subdivision 6.

Shot clocks

The Small Cell Order’s shot clock requirements were also challenged. The Small Cell Order set a safe harbor shot clock for small cell applications of 60 days for installations on existing infrastructure and 90 days for all other applications. The court upheld these shot clocks. The ruling did not affect shot clocks of 90 days required by Minnesota Statutes, section 237.163, subdivision 3c.

The court upheld the lack of a “deemed granted” remedy for a shot clock violation in the Small Cell Order. Minnesota’s deemed granted remedy is in Minnesota Statutes, section 237.163, subdivision 3c.

Moratorium

Finally, the court considered a challenge to the FCC’s Moratoria Order, which prevents cities from adopting ordinances and practices preventing or suspending the acceptance, processing, or approval of small cell applications.

The court upheld the moratoria restrictions. Cities are still prevented from adopting a moratorium on small cell applications by both the Moratoria Order and Minnesota Statutes, section 237.163, subdivision 2.

LMC will track this issue and provide updates if municipalities or the industry appeal this ruling.

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