FCC Update: Small Cell Petition and Pole Attachment Ruling

This client alert summarizes two recent Federal Communications Commission (FCC) matters that may be of importance to carriers engaging in the deployment of wireless and wireline telecommunication networks.

First, on August 29, 2019, the FCC requested public comments on Verizon’s August 8th Petition1 for preemption of certain fees and charges of Clark County, Nevada, pursuant to the FCC’s Small Cell Order.2 According to Verizon, Clark County recently passed an ordinance that assesses: (a) a fee ranging from $700 to $3,960 per year for each small wireless facility installed in the county public rights-of-way; (b) a master wireless use license fee for deployment of small cells equal to 5 percent of the carrier’s annual gross revenues earned from facilities located on a public right-of-way in Clark County; and (c) an annual fee of $500 per small wireless facility installed in a public right-of-way or on other assets inspected by Clark County.3 The Verizon Petition requests an FCC order preempting all the fees described above as contrary to Section 253 of the federal Communications Act and the FCC’s Small Cell Order. The FCC seeks public comments and reply comments on the Verizon Petition by September 25, 2019 and October 10, 2019, respectively.

Second, on August 12, 2019, the FCC’s Enforcement Bureau released an Order granting, in part, the pole attachment complaint of MAW Communications, Inc. (MAW), a fiber-optic telecommunications carrier in Pennsylvania, against PPL Electric Utilities Corporation (PPL).4 The Bureau found that PPL had violated Section 224 of the federal Communications Act and FCC regulations by refusing to accept or process MAW’s applications for attaching its telecommunications equipment to PPL’s poles. The Pole Attachment Agreement contained a provision that specified “PPL reserves the right not to process any new attachment installation or removal applications for attachment under the terms of this Agreement while any past due charges remain unpaid.” The Order found that PPL had refused to accept or process MAW’s applications because MAW had not paid disputed invoices for pre-engineering and make-ready design work on other applications and had not offered PPL a “holistic solution” to various related disputes between the parties. Despite the express language of the Pole Attachment Agreement, the Order held that none of PPL’s asserted reasons justified a denial of pole access to MAW, which may be based only on a utility’s legitimate capacity, safety, reliability or engineering concerns. The FCC noted, however, that its ruling “should not be construed as requiring a utility repeatedly to incur expenses for pre-engineering and make-ready design on multiple applications where the attacher has indicated no good-faith intention to pay these expenses.”

Additional Assistance

For additional information regarding these two FCC items or other matters regarding telecommunications law, please contact Douglas W. Dimitroff at (716) 847-5408, ddimitroff@phillipslytle.com; David E. Bronston at (212) 508-0470, dbronston@phillipslytle.com; or Mark J. O’Connor at (202) 617-2732, mo’connor@phillipslytle.com.

  1. Petition for Declaratory Ruling that Clark County, Nevada Ordinance No. 4659 Is Unlawful under Section 253 of the Communications Act as Interpreted by the Federal Communications Commission and Is Preempted (filed Aug. 8, 2019) (“Verizon Petition”).
  2. Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Declaratory Ruling and Third Report and Order, 33 FCC Rcd. 9088 (2018) (“Small Cell Order”), petition for review pending, sub nom., City of Portland, WA, et. al., v. FCC, No. 18-72689 (9th Circuit filed October 2, 2018).
  3. The Verizon Petition also alleges that Clark County currently charges Verizon a $1 million annual gross revenue fee and an annual siting fee of $700 per pole, but it does not seek preemption of those non-small cell charges.
  4. MAW Communications, Inc. v. PPL Electric Utilities Corporation, Memorandum Opinion and Order, EB Docket No. 19-29, EB No. 19-771 (rel. August 12, 2019) (“Order”).