AT&T, Inc., and Puerto Rico Telephone Company (PRTC) are the latest entities to file petitions for review of the small cell order adopted by the FCC last month (TR Daily, Sept 26).
The declaratory ruling and third report and order bars states and localities from adopting rules that prohibit the deployment of wireless infrastructure, imposes limits on the fees that municipalities can charge for reviewing small cell deployments, sets shot clocks for acting on small cell applications, and provides guidance on when non-fee requirements such as aesthetic and undergrounding requirements may amount to an effective prohibition on service. But the FCC declined to adopt a deemed granted remedy when a locality fails to act on an application within a certain period of time.
Although the wireless industry generally supported the item, AT&T, Sprint Corp., and PRTC are challenging it because the FCC did not adopt the deemed granted remedy. More than two dozen Western localities and municipal groups have also filed petitions for review more broadly challenging the FCC item (TR Daily, Oct. 24 and 26).
“In the Order, the Commission, among other things and without prejudice to other claims, refused to adopt a ‘deemed granted’ remedy for instances when a state or local government entity fails to act on a request for authorization to place, construct, or modify personal wireless services facilities within a reasonable period of time after the request is filed, contrary to 47 U.S.C. § 332(c)(7)(B),” AT&T noted in its petition for review (case no. 18-1294), which was filed in the U.S. Court of Appeals for the District of Columbia Circuit. “AT&T is affected by the determinations in the Order because delays on requests for authorization to construct postpone deployment of wireless facilities. AT&T is thus aggrieved by the Order and has standing to challenge it. AT&T seeks review of the Order on the grounds that it is arbitrary, capricious, inadequately reasoned, or otherwise contrary to law. AT&T requests that this Court hold unlawful, vacate, enjoin, and set aside the Order, and that it provide such additional relief as may be appropriate.”
“While we remain largely supportive of the FCC’s wireless infrastructure order, the omission of a deemed granted remedy for failure to meet the shot clock runs counter to the Commission’s efforts to encourage investment in critical broadband facilities,” an AT&T spokesperson said.
“Despite substantial evidence in the record supporting the need for the Commission to adopt a ‘deemed granted’ remedy when authorities subject applications for wireless infrastructure siting to unreasonable delays or effective prohibitions, the Commission declined to adopt such a remedy,” PRTC (d/b/a Claro) noted in its petition for review (case no. 18-2063), which was filed in the U.S. Court of Appeals for the First Circuit (Boston). “PRTC seeks relief on the grounds that the Commission’s decision not to adopt a ‘deemed granted’ remedy is (1) arbitrary, capricious, and an abuse of discretion within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 et seq.; (2) inconsistent with sections 253 and 332 of the Communications Act, 47 U.S.C. §§ 253, 332; and (3) otherwise contrary to law. Accordingly, PRTC respectfully requests that this Court remand the relevant portion of the Order to the Commission, without vacatur, and with instructions for the Commission to adopt a ‘deemed granted’ remedy as soon as is practicable.”- Paul Kirby, email@example.com