Client Advisory: The FCC Initiates Close Look at Wireless Infrastructure Deployment and Investment Issues
At its April 20, 2017 Open Meeting, the Federal Communications Commission (“Commission” or “FCC”) initiated two proceedings to review ways in which the Commission might alleviate obstacles wireless providers face at the state, local, and Tribal levels when trying to install new or upgrade existing wireless infrastructure. FCC Chairman Ajit Pai welcomed new ideas for “updating state, local, and Tribal infrastructure review to meet the realities of the modern marketplace.” The Commission’s release, a combined notice of proposed rulemaking (“NPRM”) and notice of inquiry (“NOI”), explains that wireless providers need to be able to deploy many wireless cell sites across the country in response to growing demand for wireless broadband to support high-bandwidth applications and the growth of the Internet of Things. The NPRM and NOI on wireless infrastructure deployment complement a second pair of proceedings that will be looking at wireline infrastructure, also adopted at the FCC’s Open Meeting. A blog and advisory on the wireline counterpart is forthcoming. We review the highlights of the wireless infrastructure NPRM and NOI below. In our companion client advisory, we explore in depth the proposed modifications and areas sought for comment in the NPRM and NOI. Comments will be due 30 days after publication in the Federal Register and reply comments 60 days after publication. I. NPRM The FCC’s NPRM focuses on the process affecting wireless facility deployment applications that are conducted by State and local regulatory agencies, the subject of Section 332 of the Communications Act. Section 332, while recognizing state and local authority over antenna siting review, also places a limitation on this authority by requiring decisions on applications be made within “a reasonable period of time” so as to limit impediments to deployment of wireless facilities. The Commission solicits comment on the effectiveness of the Commission’s efforts to date implementing Section 332 – principally a 90 or 150-day shot clock, depending on the circumstances, which creates a presumption that a state or local government has failed to act within a reasonable period of time – and additional measures or clarifications that might further expedite Section 332 review processes. The FCC proposes
- Ways to craft and implement a “deemed granted” remedy when state and local agencies fail to act on antenna siting applications within a reasonable time – not just a presumption that the delay is unreasonable;
- Adopting shorter review time periods for facility deployment reviews under Section 332; and
- Issuing an order or adopting other regulatory measures clarifying the status of local moratoria that have the effect of slowing down or suspending wireless application processing.