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Posted on: August 14, 2020

9th Circuit Mostly Upholds FCC Order Preempting Local Authority Over 5G Deployment

On Wednesday, the Ninth Circuit largely upheld a series of Federal Communication Commission (FCC) Orders aimed at expediting the deployment of small cell and 5G technology at the expense of local control and autonomy. Although many provisions of the Order, such as the cap on local fees and the prohibition on moratoriums was upheld, the court did modify the Order as it relates to local authority on aesthetic requirements and how different types of providers can be regulated.

The court held that, to the extent that provision required small cell facilities to be treated in the same manner as other types of communications services, the regulation was contrary to the congressional directive that allowed different regulatory treatment among types of providers, so long as such treatment did not “unreasonably discriminate among providers of functionally equivalent services.” The court also held that the FCC’s requirement that all aesthetic criteria must be “objective” lacked a reasoned explanation – vacating the requirement and remanding to the FCC.

It is not clear at this time whether the decision will be appealed or what action the FCC will take in response to the decision. The League continues to monitor the issue and will keep our members up to date on any developments.

Contact: Frank Marshall, Esq., Associate General Counsel, fmarshall@njlm.org, 609-695-3481 x137.

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