FCC Finding on 'Deemed Granted' Complicated by O'Rielly Concerns

O’Rielly wants to clamp down on zoning authorities that charge excessive fees for approvals or otherwise impose roadblocks. “Despite efforts to curb such behavior, industry is still experiencing excessive delays and moratoria when filing siting applications,” O’Rielly said in a recent speech to the Wireless Infrastructure Association. But he has also long insisted the FCC stay within the bounds of jurisdictional authority.

In comments as the FCC approved an NPRM and notice of inquiry on wireless infrastructure in April, O’Rielly questioned whether the FCC has the authority under the Communications Act to say applications are deemed granted when local or state authorities fail to act. “I will review with particular interest submissions regarding our statutory authority to impose a deemed granted remedy under section 332,” O’Rielly said. “While I like the idea, the wording of the statute may complicate our ability to bypass the judicial system.”

The shot clock requires companies to file in court when local agencies fail to act within the 90-day period for collocation applications, 150 days for other applications. “We now take a fresh look and seek comment on a ‘deemed granted’ remedy for State and local agencies’ failure to satisfy their obligations under Section 332(c)(7)(B)(ii) to act on applications outside the context of the Spectrum Act,” said the NPRM, which delves into the issue at length.

O’Rielly will “tell you flat out” the FCC can’t act without jurisdictional authority, said Best Best local government attorney Gerard Lederer. “Where Congress specifically and exclusively reserves sort of oversight and remedies to the courts, as opposed to the FCC, deemed granted would be a remedy and they’re not authorized to do that.” That was essentially O’Rielly’s point on the NPRM, Lederer said.

Industry officials said whether to impose a deemed grant backstop is an FCC dilemma, especially given O’Rielly’s concerns. “This is a tough nut to crack,” said a former FCC spectrum official. “Somebody will lose. And, when it comes to continuing to improve broadband availability and roll out new 5G services, and the related tangible consumer benefits, you can't have it both ways.”

CTIA hopes "the FCC will expand its use of meaningful remedies​, like deemed grant provisions, which promote wireless deployment while also preserving the role of localities in siting decisions," a spokesman emailed. The FCC and WIA didn't comment.

“The concept of the federal government getting involved in making a local zoning decision sort of runs contrary to the whole concept of local control and what local government is about,” said local government attorney Ken Fellman of Kissinger & Fellman. He often has a different view from O’Rielly but shares his concerns here. Fellman has been looking at the jurisdictional issue on behalf of cities and counties. “I think there’s a compelling argument the federal government doesn’t have the authority [to override local control] without really direct, explicit congressional authority” like the FCC received for collocation rules in the Spectrum Act, he said: It would be a “stretch” to come up with a legal basis “for intruding on this traditional area of local concern.”

In a May meeting at the FCC, the National League of Cities said the agency shouldn’t adopt a deemed granted “remedy” to missing shot clock deadlines or impose new deadlines. “Circumstances that could lead to a shot clock deadline being missed" include "missing or incomplete information providers are asked to give local governments to finish processing a siting application,” said a filing in docket 17-79. “While the public notice requests feedback on state or local regulations that may prohibit service, it does not inquire about industry practices that may do the same.”

Pai on the Road

Pai is hitting the road this month to meet with tribal interests on siting issues, he blogged Friday. Industry officials at the recent WIA conference where O'Rielly spoke said tribal review can impede approvals.

“The wireless networks of the future too will look very different,” Pai wrote. “Instead of just big towers that intermittently dot the landscape, the wireless networks of our future will rely on much smaller building blocks -- things like ‘small cell’ and ‘distributed antenna systems.’ These new kinds of infrastructure take up much less space. ... Because they operate at lower power, they will be deployed at many more locations than towers.”

“The FCC wants to work collaboratively with everyone affected,” Pai said. He and staffers will attend Mid-Year Session of the National Conference of American Indians (NCAI) and plan consultation sessions with the tribes, he said. “I invite the leaders of the 567 federally-recognized Tribes and Native Hawaiian Organizations to join this important conversation,” he said. “The FCC takes seriously its federal trust responsibilities and wants to have meaningful consultations. I look forward to listening, learning, and working together to sustain and improve our processes as our wireless networks go back to the future.”

The agency also said Friday Pai will visit five northern states, starting in Milwaukee Monday and ending in Casper, Wyoming, Saturday. “He will be making stops in Wisconsin, Minnesota, Iowa, South Dakota, and Wyoming,” the FCC said. “He will be meeting with many rural broadband providers, learning about the challenges they face deploying broadband in rural America, and discussing how the FCC can help close our nation’s digital divide.”