FCC Bans Moratoria on Communications Facilities Deployment

The FCC has banned moratoria related to wired and wireless telecommunications equipment deployment. In a party-line vote Aug. 2, the FCC adopted its Third Report and Order and Declaratory Ruling, which also creates a One-Touch Make-Ready regime for pole attachments. In addition to knowing how the moratorium ban will impact local governments, local governments, as discussed below, have the option to ask the FCC to reconsider the Order by Sept. 4 or file an appeal by Oct. 2.

What the Order Does:
The FCC found that both express moratoria and de facto moratoria on wired and wireless telecommunications equipment violate 47 USC 253 as they effectively halt or suspend the acceptance, processing or approval of applications or permits. Section 253 states: “No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” The FCC’s Declaratory Ruling also:

Declares that moratoria are generally not protected by the exceptions Congress made available to states in Section 253(b) or local governments in Section 253(c), and perhaps Section 332(c)(7)(A).
Invites impacted carriers to file petitions under Section 253(d) with the FCC challenging specific alleged moratoria and directs the FCC staff to act promptly on such petitions.

What is a Moratorium
Having declared that both express and de facto moratoria violate section 253(a), the FCC defines each moratorium as follows:

Express moratoria are “…state or local statutes, regulations, or other written legal requirements that expressly, by their very terms, prevent or suspend the acceptance, processing, or approval of applications or permits necessary for deploying telecommunications services and/or facilities.”
De Facto moratoria are “…state or local actions that are not express moratoria, but that effectively halt or suspend the acceptance, processing, or approval of applications or permits for telecommunications services or facilities in a manner akin to an express moratorium.”

Examples of Express Moratoria Cited in Order
The Order makes vague cites to laws that constitute express moratoria. They are drawn from un-reviewed allegations made by carriers including:

44 jurisdictions in Florida that Uniti Fiber complains implemented wireless moratoria. No cite to the laws, or mention that the Florida Small Cell statute, passed at the request of industry, reserved short-term moratoria.
An unnamed Ohio community that AT&T claimed “enacted a 145-day moratorium on permits for construction in rights-of-way….”

An unnamed Illinois city that AT&T claimed “imposed a 5-year moratorium on pavement cuts to roadways that have been resurfaced or reconstructed.”
Season limitations of construction for public safety reasons including the State of Michigan Winter Construction Moratorium. Frontier complains that the State of Michigan “has frost and freeze laws that prevent construction of facilities for extended periods of time during the winter.”

Examples of De Facto Moratoria
The FCC’s descriptions of de facto moratoria are equally vague and lacking in substantiation. The FCC echoes industry claims that de facto moratoria are not limited to blanket refusals to process applications, refusals to issue permits for a category of structures, frequent and lengthy delays in issuing permits or processing applications, or delayed review of applications until pending local, state or federal legislation are adopted. The Order references multiple de facto moratoria in Massachusetts and Illinois, but no jurisdiction or practices are cited, nor any independent FCC research conducted to validate the industry claims.

Troubling Examples of Moratoria that are Really Enforcement
The FCC includes in its examples of express moratoria incidents that do not seem to be moratoria, but are enforcement issues or choices to not make certain public property available for communications facilities. Examples in this category include:

Unnamed Illinois communities that Frontier complains “… refuse to issue work permits unless a carrier pays.”
Unnamed state DOT officials that “refused to issue permits for deploying fiber on bridges, even where spare conduit is available.”

It is important to note that the FCC makes clear that not all street cut regulations are illegal moratoria under the Order. Street cut requirements that are designed to promote “dig-once” policies “would not qualify as unlawful moratoria if the state or locality imposing such street-cut requirements does not bar alternative means of deployment such as aerial lines or sublicensing existing underground conduits.”

How Best to Respond
Local governments should continue to pursue programs that protect the health and safety of constituents. But it would be prudent to look at the examples listed above to see if your agency might have a rule or ordinance that could be described as an express or de facto moratorium.

If your community has an express moratorium, it should be reevaluated or otherwise made clear that it will not be enforced. The FCC ruling is not clear as to what constitutes a de facto moratorium, but if a provider claims your agency’s rules constitute such, contact your counsel to learn how best to respond.

Timelines for Response
Local governments have a choice in responding to the FCC and deadline for making the choice:

Sept. 4 to ask the FCC to reconsider its decision or
Oct. 2 to appeal the FCC’s decision to one of the U.S. Courts of Appeals.

Best Best & Krieger LLP is reviewing the Order to determine how best to respond. Please contact your BB&K attorney to discuss your agency’s interest in participating in a response. If you have any questions about this Order or how it may impact your agency, please contact the author of this Legal Alert listed to the right in the firm’s Telecommunications practice group, or your BB&K attorney.

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