Recent FCC Actions to Spur Wireless 5G Deployment

The Federal Communications Commission (“FCC”) has taken several actions in recent months to facilitate broadband deployment of next generation 5G networks. Below we highlight two recent FCC orders, one to speed the deployment of wireless small cell networks and another to introduce valuable mid-band wireless spectrum for use by 5G broadband networks.

The FCC’s Small Cell Order

The FCC adopted a Declaratory Ruling and Third Report and Order (“Small Cell Order”) on September 26, 2018 to address local and state regulatory burdens on deployment of wireless facilities, including small cell networks. The FCC largely adopted its draft Small Cell Order, which we summarized in our September 2018 Client Alert. We call your attention here to two significant changes in the Small Cell Order that were not in draft Small Cell Order.

First, as modified, the Small Cell Order establishes the following “safe harbor” ceilings on state and local government fees for small cell deployments:

  • State or local authorities may charge a nonrecurring fee (including, but not limited to, an application fee) of no more than $500.00 for a single up-front application that includes up to five (5) small cell antennae (with an additional charge of no more than $100.00 for each additional small cell antenna), or a nonrecurring fee of no more than $1,000.00 for a new pole intended to support one or more small cells; and
  • State or local authorities may charge no more than $270.00 for an annual recurring fee, including any right-of-way (“ROW”) access fee or fee for attaching to a government-owned structure in a ROW.

Second, the Small Cell Order limits the authority of state or local governments to impose aesthetic, undergrounding and minimum spacing requirements on small cell deployments. Specifically, such requirements are permissible only if they are:

  • Technically feasible and reasonably directed at avoiding or remedying a public harm;
  • Objective, clearly defined and ascertainable;
  • Not more burdensome than required of similar infrastructure deployments; and
  • Published in advance.

The Small Cell Order will take effect on January 14, 2019. On October 24, 2018, 20 municipalities filed an appeal of the Small Cell Order at the U.S. Court of Appeals for the Ninth Circuit. City of San Jose v. United States, No. 18-72883 (9th Cir. filed Oct. 24, 2018).

CBRS Order

The FCC’s wireless Citizens Band Radio Service (“CBRS”) 3.5 GHz band will allow both unlicensed and licensed use of mid-band spectrum, which is widely seen as key for a host of mobile and fixed 5G, private LTE and IoT networks. In general, the CBRS band will provide at least 80 MHz of unlicensed spectrum and up to 70 MHz of licensed spectrum (seven 10 MHz licenses) in each market.

On October 23, the FCC adopted a Report and Order finalizing rules for CBRS licenses and the auction of those licenses. Each CBRS license (aka priority access licenses or PALs) will be auctioned and issued on a countywide basis, which provides a larger geographic coverage area than the FCC’s prior ruling of census tract license areas. The FCC also increased the term of the PALs to 10 years, with a renewal expectancy, and it modified the technical emissions limits rules somewhat to permit wider band CBRS operations. The FCC has not set a date for the upcoming PALs auction.

Additional Assistance

For additional information regarding the FCC’s Small Cell Order, the CBRS band or other matters regarding telecommunications law, please contact Douglas W. Dimitroff at (716) 847-5408,; David E. Bronston at (212) 508-0470,; or Mark J. O’Connor at (202) 617-2732, mo’