Court Restores Local Discretion Over Design Standards Involving Small Cell Wireless Facilities

The Ninth Circuit Court of Appeals issued a decision Aug. 12 in City of Portland, et al. v. United States. 

The decision largely upholds two orders that the Federal Communications Commission (FCC) adopted in 2018 to accelerate the deployment of fifth generation (5G) wireless technology by limiting local governments’ authority to regulate the installation of small cell wireless facilities. However, in an important victory for cities, the Court struck down some of the small cell order’s limits on local aesthetic regulations, thereby restoring significant local discretion over aesthetics.

The orders, known as the “small cell order” and the “moratoria order,” had various effects on local governments. For example, the small cell order limited cities’ ability to regulate the aesthetic features of wireless facilities and to charge fees or ongoing rent for the use of the public right-of-way. It also shortened the “shot clock” for cities to consider applications filed by telecommunications providers. The moratoria order effectively banned cities from adopting moratoria on wireless facility deployments, with very limited exception.

A coalition of local governments and municipal leagues — including the League of California Cities — filed a lawsuit challenging the small cell and moratoria orders on various grounds, including that the orders limit local regulatory authority to a greater degree than contemplated in the federal Telecommunications Act, and therefore, exceeded the FCC’s authority.

The small cell order provided that local aesthetic regulations were to be (1) reasonable, (2) no more burdensome than those applied to other infrastructure deployments, and (3) objective and published in advance. To be “reasonable,” aesthetic regulations were to be technically feasible and reasonably directed at mitigating aesthetic harms. To be “no more burdensome” than those applied to other deployments, aesthetic regulations were to treat all infrastructure in the right-of-way alike. To be “objective,” the regulations were to incorporate clearly-defined and ascertainable standards, applied in a principled manner.

The Court upheld the reasonableness requirement, but struck down the requirements that the aesthetic regulations be “no more burdensome” and “objective.” As for the “no more burdensome” requirement, the Court noted it was inconsistent with language in the Telecommunications Act that allows local governments to differentiate in regulating functionally equivalent providers if the infrastructure they deploy is physically different. As for the “objective” requirement, the Court found that it was neither adequately defined nor adequately explained by the FCC. 

There is still a possibility the Court’s decision could be appealed. Accordingly, cities that have questions as to the impact of this decision on their city should consult with their city attorney.