On August 12, 2020, in a major victory for the telecommunications industry, the U.S. Court of Appeals for the Ninth Circuit issued a decision in City of Portland v. United States. In the much-anticipated ruling, the court upheld two orders that the Federal Communications Commission (FCC or Commission) adopted in 2018 to streamline deployment and reduce costs of telecommunications infrastructure and facilitate the provision of fifth generation wireless (5G) and broadband services. The orders at issue applied prior FCC interpretations of preemptive provisions in the Communications Act to limit local barriers to small wireless facility (small cell) siting in a number of areas including fees, aesthetics, and application processing timeframes, and separately, took further action to speed deployment on utility poles and eliminate artificially high pole attachment rates that persist despite prior Commission orders.
In a significant win for the FCC, the telecommunications industry, and the deployment of 5G and broadband, the court rejected all legal challenges brought by the electric industry petitioners and nearly all of the legal challenges brought by the local government petitioners. The court unanimously upheld all aspects of the Commission’s order relating to pole attachment rates and deployment on utility poles. The court also upheld the vast majority of the orders as related to small cells, invalidating just two requirements that the FCC had imposed on small cell siting, both of which were related to aesthetic regulations, while leaving intact the other aesthetics-related constraints and the remainder of both of the FCC’s orders. In its decision, the court expressly endorsed numerous legal interpretations and findings by the FCC that specific local restrictions on wireless siting are preempted by the Communications Act as applied to small cells because of the prohibitory effect such requirements have on the provision of service, including, notably, finding that the agency was within its authority to require that any local fees be limited to recovery of costs, and that local jurisdictions had no right to make a profit from these fees. The court also rejected a challenge raised by some wireless industry petitioners asserting that the small cell orders did not go far enough because the FCC did not adopt an expanded “deemed grant” remedy for siting applications.
One of the three judges on the panel dissented from the court’s decision to uphold the aspect of the FCC’s orders that requires municipal fees for small cells to be limited to a municipality’s costs. Applications for rehearing and rehearing en banc are due within 45 days from entry of judgment.