FCC Chairman Ajit Pai has circulated a Notice of Proposed Rulemaking (“NPRM”) for consideration at the agency’s next open meeting on April 12, 2019 to expand protections for over-the-air reception devices (“OTARD”) to include hub and relay antennas that are part of the infrastructure needed for 5G deployments nationwide. The draft was released on March 25th and so far there have been no meetings on the draft reported in the docket, so it remains to be seen whether local governments or homeowners’ association groups, for example, will resist this action.

Continue Reading

The Telecommunications Act of 1996 imposes limitations on a local government’s ability to deny permits to construct telecommunication towers. These include, among others, prohibitions against discrimination, a review of applications within a reasonable timeframe, and a requirement that application denials be “in writing and supported by substantial evidence contained in a written record.” See 47 U.S.C. §332(c)(7)(B)(i)-(iv). The statute juxtaposes these restrictions against an express preservation of a local government’s “decisions regarding the placement, construction, and modification of personal wireless service facilities.” Id. at § 332(c)(7)(A).

Recently, some courts have strictly construed Section 332(c)(7)(B)’s prohibitions. For example, last week, the 9th Circuit U.S. Court of Appeals held that a local government’s requirement that municipal voters approve certain constructions was not subject to the prohibitions of Section 332(c)(7). In Omnipoint Commc’ns Inc. v. City of Huntington Beach, — F. – -, 2013 WL 6486240 (9th Cir. Dec. 11, 2013), a seventeen year-old voter initiative amended the local government’s charter to require city council and voter approval before construction costing more than $100,000 occurred on city-owned property. After initially approving the carrier’s siting of antennas in a city park within a reasonable time but discovering that the construction costs exceeded $100,000, the local government required that the construction be approved by voters. The carrier filed suit arguing that Section 332(c)(7)’s restrictions barred applying the voter-initiative requirement to the proposed construction. 
Continue Reading