In two earlier blog posts from 2018, found here and here, we discussed the 2018 FCC Order, including the fee standards and “shot clocks” that were adopted by the FCC. Of particular interest to municipalities were the fee standards and the safe harbor fees that municipalities are permitted to charge for small cell facilities. To recap, the 2018 The FCC Order addressed three types of fees charged by municipalities: (1) fees for access to the public rights-of-way; (2) fees for the use of governmental property located in the public rights-of-way; and, (3) application review fees. The safe harbor fees under the 2018 FCC Order are: (1) $500 for an application that proposes up to five small cell facilities and an additional $100 for each proposed facility beyond five; and, (2) $270 per year for any recurring fee such as a right-of-way access fee or a fee charged for access to a municipal structure located in the right-of-way. The 2018 FCC Order also provided clarification regarding ordinance requirements based on aesthetics.
Multiple appeals of the 2018 FCC Order were filed by municipalities, municipal organizations and wireless service providers. All of the appeals were transferred to the federal Ninth Circuit Court of Appeals (Alaska, Hawaii, Arizona and California) for disposition. The Ninth Circuit issued a decision in August that upheld the provisions of the 2018 FCC Order that deal with fees and shot clocks. With respect to the aesthetics provisions, the decision upheld the provision that the requirements be reasonable. However, it vacated the provisions that required that the requirements be objective and no more burdensome than those applied to other types of infrastructure deployments.
We will continue to monitor decisions related to the 2018 FCC Order and provide updates when necessary. In the meantime, please feel free to contact any member of the McNees Wallace & Nurick Land Use Group for assistance with any land use or development issues and/or if you have any questions regarding this post.