How States and Localities Can Set Realistic Small Cell Application Fees Now That the 9th Circuit Has Upheld FCC Preemption of Local Authority

Andrew Afflerbach, PhD, P.E.


Now that a federal appeals court has largely upheld the Federal Communications Commission’s preemption of local authority over small cell siting, states and localities would be wise to rigorously document their costs of processing applications and hosting equipment on utility poles or light poles.

If they undertake such a process, they’ll have a basis for establishing application fees and recurring fees that reimburse them for their actual costs—and that will withstand potential challenges from the wireless industry.

On August 12, 2020, the 9th U.S. Circuit Court of Appeals in San Francisco largely upheld three orders related to small cell deployment that the FCC issued in 2018. One of those orders set presumptive wireless facilities siting application and rental fees that localities can charge: $500 per application for up to five sites; $100 per site thereafter; and recurring fees in the rights-of-way limited to $270 per site per year.

But the FCC order and the court ruling provided a silver lining for states and localities. These dollar figures aren’t hard-and-fast numbers; the FCC also allows jurisdictions to charge a “reasonable approximation” of your “objectively reasonable costs.” This means you can set fees based on your actual costs—which, in our experience, are often higher than the FCC’s amounts. (State and local jurisdictions also retain some leeway over aesthetic aspects of the installations.)

Documenting your actual costs will help ensure you are not undercharging for application reviews and annual rights-of-way costs (and thus effectively subsidizing the industry). Even if your costs match or are less than the FCC’s numbers, you may still want to document them, because the industry can still contest your fees. Going through this exercise will also help you understand your processes—and, possibly, identify ways to improve them.

Last year we outlined in detail what this cost-documentation process looks like. We have also described 10 strategies that localities, state agencies, or utilities can adopt to protect public property—and have discussed what rigorous processes look like. Please feel free to contact us if you would like to discuss your jurisdiction’s needs in this new regulatory environment.

Published: Wednesday, September 16, 2020 by CTC Technology & Energy