September 18, 2020

Volume X, Number 262

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Another 5G Infrastructure Win for the Wireless Industry – Part 1

The FCC has made another ruling that will expedite the wireless industry’s deployment of 5G infrastructure. In September 2018, the Commission released its order on “small cells” allowing for the proliferation of 5G transmitters on lights, poles, and other structures located in municipal rights-of-way (“ROWs”) across the country (for more on that, see our previous blog post). That order was appealed by dozens of local jurisdictions from coast-to-coast and remains on appeal in the U.S. Ninth Circuit Court of Appeals. Now prompted by petitions from the wireless industry, in a Declaratory Ruling the FCC’s seeks to “interpret and clarify” rules with respect to modifications of existing infrastructure. As part of the same document, the Commission included a Notice of Proposed Rulemaking that seeks to expand even further the infrastructure rights of wireless carriers at the expense of local authorities.

The analysis of this Declaratory Ruling and Notice of Proposed Rulemaking will be broken down into three parts. This is Part 1.

Declaratory Ruling

Background

Intending to assist FirstNet in deploying its wireless public safety network, Congress enacted Section 6409(a) of the Spectrum Act. That provision provides that a “State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.” In its 2014 Infrastructure Order the FCC adopted rules implementing Section 6409(a). Nevertheless, the interpretation of what constitutes a “substantial change” has resulted in continuing disputes between wireless carriers and local siting authorities. Issues have also arisen over the commencement and tolling of the 60-day period established by the Commission for section 6409(a) reviews of existing facilities conducted by local authorities. Both CTIA and WIA petitioned the Commission to resolve these issues in favor of the wireless industry. In response, the FCC issued a Declaratory Ruling rejecting procedural arguments by local authorities that the Administrative Procedure Act (“APA”) required a notice and comment rulemaking for what amounts to new rules. Below are some of the key issues addressed in the Commission’s Declaratory Ruling.

The second blog post in this series will highlight some of the key issues addressed in the Commission’s Declaratory Ruling. Part three of this post will focus on the Notice of Proposed Rulemaking.

© 2020 Keller and Heckman LLPNational Law Review, Volume X, Number 165

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About this Author

Wesley K. Wright, Keller Heckman, Telecommunications Lawyer, FCC Enforcement Attorney, DC
Partner

Wesley Wright joined Keller and Heckman in 2006 and practices in the areas of telecommunications law.  He assists corporate clients and trade associations with various legal and regulatory matters before the Federal Communications Commission, Federal Aviation Administration, courts and state agencies.

Mr. Wright’s practice includes private wireless licensing, FCC enforcement, and related transactional matters.  He counsels clients on internal operations and governance matters and has drafted and negotiated asset purchase agreements,...

202.434.4239
Albert J. Catalano, Keller and Heckman, Domestic Joint Ventures Attorney, FCC Regulation Lawyer, DC
Counsel

Albert Catalano joined Keller and Heckman in 2014.  Mr. Catalano has 30 years of experience in telecommunications regulatory and legislative matters, domestic and international joint ventures, litigation, and transactions involving communications, properties and investments.  Mr. Catalano represents States and other entities in matters related to the buildout of the 700 MHz nationwide public safety broadband network on spectrum licensed to FirstNet.  He has extensive experience in spectrum relocation proceedings.  Mr. Catalano’s practice focuses on wireless communications, FCC auction procedures, international and domestic satellite issues, equipment certifications, enforcement issues, technology transfer and licensing.

Prior to entering private practice, Mr. Catalano served as legal counsel with the Federal Communications Commission on wireless communications, information transfer, technology developments, licensing issues and international satellite matters.  Mr. Catalano represented the Private Radio Bureau in enforcement proceedings before Administrative Law Judges.  He participated in major rulemaking proceedings involving 800 MHz and 900 MHz spectrum, dealing with regulations for commercial, private and public safety operations.

202.434.4207