Cities Outline Their Challenges to the FCC's 5G Rule in Court Filings

A sign advertises 5G devices at the Intel booth during CES International, Tuesday, Jan. 9, 2018, in Las Vegas.

A sign advertises 5G devices at the Intel booth during CES International, Tuesday, Jan. 9, 2018, in Las Vegas. John Locher/AP Photo


Connecting state and local government leaders

Local governments filed briefs this week in a lawsuit that asserts the FCC overstepped its authority in crafting broad restrictions on municipalities' ability to regulate and charge for deployment of 5G technology.

A legal challenge to the Federal Communication Commission’s 5G rules backed by nearly 80 cities and municipal governments progressed this week with challengers filing opening briefs in 9th U.S. Circuit Court of Appeals.

Cities and counties are challenging aspects of an FCC order issued in September that limits local authority over 5G wireless deployments. The FCC rules, meant to accelerate the spread of high-speed wireless infrastructure, would set rigid time frames for local governments to approve related permits, limit aesthetic requirements, and caps the fees charged to providers.

“Compelling state and local governments to grant providers access to rights-of-way and other government-owned property creates permanent, physical intrusions that constitute a taking for which state and local governments are entitled to just compensation under the Fifth Amendment,” attorneys for the coalition of cities and municipal groups wrote in an opening brief filed this week. “The small cell order deprives local governments of just compensation by restricting compensation for installing facilities on local governments’ right-of-way and infrastructure therein to cost reimbursement.”

Under the FCC’s rule, local governments can charge providers $270 in access fees each year per cell site, far less than the pre-rule $500 national average.

The local governments also argue that the order is a violation of the U.S. Constitution’s Tenth Amendment because it directly compels states to enact or administer a federal regulatory program. Under the FCC rule, a locality must respond to any request to use property because “failure to respond can result in an injunction to force access,” the brief states.

The cities’ challenge to the FCC rule was previously filed in the 10th U.S. Circuit Court of Appeals, but in January the case was transferred to the 9th Circuit in San Francisco, where cities are more hopeful about their prospects for success.

Just this April, FCC Chairman Ajit Pai touted the rule as progress the commission has made to speed up 5G installation.

“When I came into office, regulations designed for tall towers threatened to strangle our 5G future in red tape,” he said during a speech at the White House. “We’ve eliminated these rules, because infrastructure the size of a pizza box shouldn’t have to jump through the same regulatory hoops as a 200-foot tower.”

The FCC will have 60 days to respond to the series of briefs filed in the case.

In addition to the consolidated lawsuit, federal lawmakers have also introduced legislation that could overturn the FCC rule.

In addition to the filing by the coalition of cities, Montgomery County, Maryland and others also filed a brief in the case that raises concern about the potential health risks associated with radiofrequency (RF) emissions from 5G technology.  

“As thousands of these transmitters will be densely packed into residential areas and public spaces, citizens began to ask their local officials whether these installations will be safe,” wrote attorneys for the county and other municipalities.

The county asked the FCC to evaluate the commission’s radiofrequency standards, adopted in 1996, and determine whether they “will adequately protect public health and safety.”

The FCC’s rule states that commissioners “disagree with commenters who oppose the Declaratory Ruling on the basis of concerns regarding RF emissions.”

Telecom companies also weighed in on the case in court filings this week. Sprint, AT&T, Verizon and the Puerto Rico Telephone Company argue the FCC’s rules actually didn’t go far enough, saying the commission should have gone a step further in limiting the timeframe municipalities have to address permit requests. The companies argued the FCC should have specified that if a municipality fails to act on a request within the specified timeframe that the request should be automatically granted.

The American Public Power Association, which sides with local governments, called the FCC’s rule a departure from past practices.  

“For over forty years, the Commission, Congress, and the courts have repeatedly recognized that the Commission does not have regulatory authority over the rates, terms, or conditions of access to public power utility poles,” the association wrote in its brief. “In its Order, however, the Commission executed an abrupt U-turn from established law and found that it does have such authority. The Commission is mistaken.”

Andrea Noble is a staff correspondent with Route Fifty.

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