5G: FCC Bans Moratoria on Communications Facilities Deployment

The FCC has banned moratoria related to wired and wireless telecommunications equipment deployment. In a party-line vote Aug. 2, the FCC adopted its Third Report and Order and Declaratory Ruling, which also creates a One-Touch Make-Ready regime for pole attachments. In addition to knowing how the moratorium ban will impact local governments, local governments, as discussed below, have the option to ask the FCC to reconsider the Order by Sept. 4 or file an appeal by Oct. 2.

What the Order Does:
The FCC found that both express moratoria and de facto moratoria on wired and wireless telecommunications equipment violate 47 USC 253 as they effectively halt or suspend the acceptance, processing or approval of applications or permits. Section 253 states: “No State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.” The FCC’s Declaratory Ruling also:

  • Declares that moratoria are generally not protected by the exceptions Congress made available to states in Section 253(b) or local governments in Section 253(c), and perhaps Section 332(c)(7)(A).
  • Invites impacted carriers to file petitions under Section 253(d) with the FCC challenging specific alleged moratoria and directs the FCC staff to act promptly on such petitions.

What is a Moratorium
Having declared that both express and de facto moratoria violate section 253(a), the FCC defines each moratorium as follows:

  • Express moratoria are “…state or local statutes, regulations, or other written legal requirements that expressly, by their very terms, prevent or suspend the acceptance, processing, or approval of applications or permits necessary for deploying telecommunications services and/or facilities.”
  • De Facto moratoria are “…state or local actions that are not express moratoria, but that effectively halt or suspend the acceptance, processing, or approval of applications or permits for telecommunications services or facilities in a manner akin to an express moratorium.”…

https://www.bbklaw.com/news-events/insights/2018/legal-alerts/08/fcc-bans-moratoria-on-communications-facilities-de

 

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