On August 12, the 9th Circuit issued its decision in City of Portland v. FCC, in which it upheld three important Commission orders involving wireless infrastructure. The Commission's Moratoria Order, Small Cell Order (upheld except for provisions regarding aesthetic requirements), and its One-Touch-Make-Ready Order removed regulatory obstacles wireless infrastructure siting, particularly for small cells, and similarly removed obstacles for pole attachments involving cellular networks.
Among other things, the 9th Circuit's decision rejected arguments that the Small Cell and Moratorium Orders are contrary to circuit precedent and agency precedent regarding Section 253(a)'s provision that "[n]o state or local statute or regulation… may prohibit or have the effect of prohibiting… telecommunications service." It wrote:
The FCC's application of its standard in the Small Cell and Moratoria Orders is consistent with Sprint [Telephony PCS, L.P. v. County of San Diego (2008)(en banc)], which endorsed the material inhibition standard as a method of determining whether there has been an effective prohibition. The FCC here made factual findings, on the basis of the record before it, that certain municipal practices are materially inhibiting the deployment of 5G services. Nothing more is required of the FCC under Sprint...
The FCC has explained that [the agency's 1997 California Payphone Association Order] applies a little differently in the context of 5G, because state and local regulation, particularly with respect to fees and aesthetics, is more likely to have a prohibitory effect on 5G technology than it does on older technology. The reason is that when compared with previous generations of wireless technology, 5G is different in that it requires rapid, widespread deployment of more facilities… The differences in the FCC’s new approach are therefore reasonably explained by the differences in 5G technology.
Free State Foundation President Randolph May spoke to the decision's importance to 5G deployment in an August 12 media advisory. Also, FSF President Randy May and I filed public comments with the FCC in the proceeding out of which the September 2018 Small Cell Order emerged.
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