A Panel for the Ninth Circuit Court of Appeals has issued an opinion in response to Petitions from local governments and utilities challenging three FCC orders concerning the siting of small wireless facilities for 5G services. The FCC’s 2018 orders sought to reduce delay of deployments for 5G services, and are known as: (1) the Small Cell Order, which mandated approval of small wireless facility attachments; (2) the Moratoria Order, which limits the fees that localities can charge for small wireless facility installations; and (3) the One Touch and Make-Ready Order, which organizes preliminary work on utility poles and interactions between internet companies and utilities. The first two orders limit local governments’ authority to regulate telecommunications providers and the third order was intended to prevent pole owners from denying or delaying access to poles. The Panel largely upheld the Small Cell Order and the Moratoria Order with the exception of the Small Cell Order provision limiting local government authority related to aesthetics. The Panel held that to the extent that provision required small cell facilities to be treated the same as other types of communications services, the regulation was contrary to the congressional directive that allowed different regulatory treatment among types of providers, as long as such treatment did not unreasonably discriminate among providers of functionally equivalent services. The Panel also held that the FCC’s requirement that all aesthetic criteria must be “objective” lacked a reasoned explanation. The Panel unanimously upheld the Make-Ready Order. Chairman Ajit Pai calls the decision a massive victory for U.S. leadership in 5G.
