FCC rule preempts local authority to regulate wireless facilities and mandates discounted fees for use of rights-of-way

October 5, 2018

On September 26, the Federal Communications Commission (FCC), voted 3 to 1 to issue an order to limit local land use authority for the siting and appearance of small wireless facilities. The FCC definition of “small wireless facility” is any support structure 50 feet or less in height with attached antennas where individual antennas occupy no more than 3 cubic feet of volume. It also includes an additional 28 cubic feet in volume per each antenna attached to a structure.

Additionally, the new rule effectively gives away the market value of publicly-owned assets (rights-of-way) by severely limiting the annual rents that may be charged for each structure.

This National Association of Counties blog provides a summary of the 99-page FCC order’s effect on state and local government authority. It is important to note that the order explicitly supersedes state laws, and therefore grants further concessions to the wireless industry than were enacted by the Virginia General Assembly during the 2017 and 2018 legislative sessions.

Here’s what Virginia Counties need to know:

  • Legal challenges to the order will be filed;
  • The new rule places additional restrictions on what counties may charge for the review of applications;
  • FCC limits on application review times are reduced to 60 days for antenna attachments to existing facilities and 90 days for new structures;
  • The preemption of state law means that any existing requirements for undergrounding of wireless facilities, per approved comprehensive plans, will no longer be enforceable;
  • VDOT will now only be allowed to charge $270 per year for a 50-foot structure. This preempts current Virginia law that prescribes a $1,000 per year “right-of-way use fee” that is allocated to highway maintenance funding;
  • Boards of Supervisors will be prevented from negotiating the fair market value of county-owned real estate within the VDOT secondary road system; and
  • While the stated purpose of the rule is to accelerate broadband deployment for 5G (5th generation) wireless technology, Virginia’s Chief Broadband Advisor recently testified before the Virginia House Appropriations Committee that 5G “is not going to solve the rural broadband problem” and “it is not even going to solve the suburban broadband problem.” He also stated that cellular service, while related, is not broadband, and that 5G will be limited only to areas where you already have good service for people who can afford to “pay for pretty expensive transmission equipment reflected in their bills.”

The order becomes effective 90 days after publication in the Federal Register. VACo will continue to provide updates on legal challenges that may result in any delays or suspension of the FCC action.

VACo Contact: Joe Lerch, AICP

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