City of Portland v. United States ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF PORTLAND, No. 18-72689
Petitioner,
FCC No.
v. 18-111
UNITED STATES OF AMERICA;
FEDERAL COMMUNICATIONS
COMMISSION,
Respondents,
CITY AND COUNTY OF SAN
FRANCISCO; CITY OF ARCADIA; CITY
OF BELLEVUE; CITY OF
BROOKHAVEN; CITY OF BURIEN;
CITY OF BURLINGAME; CITY OF
CHICAGO; CITY OF CULVER CITY;
CITY OF DUBUQUE; CITY OF GIG
HARBOR; CITY OF KIRKLAND; CITY
OF LAS VEGAS; CITY OF LINCOLN;
CITY OF MONTEREY; CITY OF
PHILADELPHIA; CITY OF PIEDMONT;
CITY OF PLANO; CITY OF SAN
BRUNO; CITY OF SAN JACINTO; CITY
OF SAN JOSE; CITY OF SANTA
MONICA; CITY OF SHAFTER; COUNTY
OF LOS ANGELES; HOWARD
COUNTY; MICHIGAN MUNICIPAL
LEAGUE; CTIA - THE WIRELESS
2 CITY OF PORTLAND V. UNITED STATES
ASSOCIATION; TOWN OF FAIRFAX;
TOWN OF HILLSBOROUGH,
Intervenors.
AMERICAN ELECTRIC POWER No. 19-70490
SERVICE CORPORATION;
CENTERPOINT ENERGY HOUSTON FCC No.
ELECTRIC, LLC; DUKE ENERGY 18-111
CORPORATION; ENTERGY
CORPORATION; ONCOR ELECTRIC
DELIVERY COMPANY, LLC;
SOUTHERN COMPANY; TAMPA
ELECTRIC COMPANY; VIRGINIA
ELECTRIC AND POWER COMPANY;
XCEL ENERGY SERVICES INC.,
Petitioners,
v.
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
VERIZON; US TELECOM—THE
BROADBAND ASSOCIATION,
Respondents-Intervenors.
CITY OF PORTLAND V. UNITED STATES 3
SPRINT CORPORATION, No. 19-70123
Petitioner,
FCC No.
v. 18-133
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
CITY OF BOWIE, Maryland; CITY OF
EUGENE, Oregon; CITY OF
HUNTSVILLE, Alabama; CITY OF
WESTMINSTER, Maryland; COUNTY
OF MARIN, California; CITY OF
ARCADIA, California; CULVER CITY,
California; CITY OF BELLEVUE,
California; CITY OF BURIEN,
Washington; CITY OF BURLINGAME,
California; CITY OF GIG HARBOR,
Washington; CITY OF ISSAQUAH,
Washington; CITY OF KIRKLAND,
Washington; CITY OF LAS VEGAS,
Nevada; CITY OF LOS ANGELES,
California; CITY OF MONTEREY,
California; CITY OF ONTARIO,
California; CITY OF PIEDMONT,
California; CITY OF PORTLAND,
Oregon; CITY OF SAN JACINTO,
California; CITY OF SAN JOSE,
California; CITY OF SHAFTER,
California; CITY OF YUMA, Arizona;
4 CITY OF PORTLAND V. UNITED STATES
COUNTY OF LOS ANGELES,
California; TOWN OF FAIRFAX,
California; CITY OF NEW YORK, New
York,
Intervenors.
VERIZON COMMUNICATIONS, INC., No. 19-70124
Petitioner,
FCC No.
v. 18-133
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
CITY OF ARCADIA, California; CITY
OF BELLEVUE, California; CITY OF
BURIEN, Washington; CITY OF
BURLINGAME, California; CITY OF
GIG HARBOR, Washington; CITY OF
ISSAQUAH, Washington; CITY OF
KIRKLAND, Washington; CITY OF
LAS VEGAS, Nevada; CITY OF LOS
ANGELES, California; CITY OF
MONTEREY, California; CITY OF
ONTARIO, California; CITY OF
PIEDMONT, California; CITY OF
PORTLAND, Oregon; CITY OF SAN
JACINTO, California; CITY OF SAN
JOSE, California; CITY OF SHAFTER,
CITY OF PORTLAND V. UNITED STATES 5
California; CITY OF YUMA, Arizona;
COUNTY OF LOS ANGELES,
California; CULVER CITY, California;
CITY OF NEW YORK, New York;
TOWN OF FAIRFAX, California,
Intervenors.
PUERTO RICO TELEPHONE No. 19-70125
COMPANY, INC.,
Petitioner, FCC No.
18-133
v.
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
CITY OF ARCADIA, California; CITY
OF BELLEVUE, California; CITY OF
BURIEN, Washington; CITY OF
BURLINGAME, California; CITY OF
GIG HARBOR, Washington; CITY OF
ISSAQUAH, Washington; CITY OF
KIRKLAND, Washington; CITY OF
LAS VEGAS, Nevada; CITY OF LOS
ANGELES, California; CITY OF
MONTEREY, California; CITY OF
ONTARIO, California; CITY OF
PIEDMONT, California; CITY OF
PORTLAND, Oregon; CITY OF SAN
6 CITY OF PORTLAND V. UNITED STATES
JACINTO, California; CITY OF SAN
JOSE, California; CITY OF SHAFTER,
California; CITY OF YUMA, Arizona;
COUNTY OF LOS ANGELES,
California; CULVER CITY, California;
TOWN OF FAIRFAX, California; CITY
OF NEW YORK, New York,
Intervenors.
CITY OF SEATTLE, Washington; CITY No. 19-70136
OF TACOMA, Washington; KING
COUNTY, Washington; LEAGUE OF FCC No.
OREGON CITIES; LEAGUE OF 18-133
CALIFORNIA CITIES; LEAGUE OF
ARIZONA CITIES AND TOWNS,
Petitioners,
v.
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
CITY OF BAKERSFIELD, California;
CITY OF COCONUT CREEK, Florida;
CITY OF LACEY, Washington; CITY
OF OLYMPIA, Washington; CITY OF
RANCHO PALOS VERDES, California;
CITY OF TUMWATER, Washington;
COLORADO COMMUNICATIONS AND
CITY OF PORTLAND V. UNITED STATES 7
UTILITY ALLIANCE; RAINIER
COMMUNICATIONS COMMISSION;
COUNTY OF THURSTON, Washington;
CITY OF ARCADIA, California; CITY
OF BELLEVUE, Washington; CITY OF
BURIEN, Washington; CITY OF
BURLINGAME, California; CITY OF
GIG HARBOR, Washington; CITY OF
ISSAQUAH, Washington; CITY OF
KIRKLAND, Washington; CITY OF
LAS VEGAS, Nevada; CITY OF LOS
ANGELES, California; CITY OF
MONTEREY, California; CITY OF
ONTARIO, California; CITY OF
PIEDMONT, California; CITY OF
PORTLAND, Oregon; CITY OF SAN
JACINTO, California; CITY OF SAN
JOSE, California; CITY OF SHAFTER,
California; CITY OF YUMA, Arizona;
COUNTY OF LOS ANGELES,
California; CULVER CITY, California;
TOWN OF FAIRFAX, California; CITY
OF NEW YORK, New York,
Intervenors.
CITY OF SAN JOSE, California; CITY No. 19-70144
OF ARCADIA, California; CITY OF
BELLEVUE, Washington; CITY OF FCC No.
BURIEN, Washington; CITY OF 18-133
BURLINGAME, California; CULVER
CITY, California; TOWN OF FAIRFAX,
California; CITY OF GIG HARBOR,
8 CITY OF PORTLAND V. UNITED STATES
Washington; CITY OF ISSAQUAH,
Washington; CITY OF KIRKLAND,
Washington; CITY OF LAS VEGAS,
Nevada; CITY OF LOS ANGELES,
California; COUNTY OF LOS
ANGELES, California; CITY OF
MONTEREY, California; CITY OF
ONTARIO, California; CITY OF
PIEDMONT, California; CITY OF
PORTLAND, Oregon; CITY OF SAN
JACINTO, California; CITY OF
SHAFTER, California; CITY OF YUMA,
Arizona,
Petitioners,
v.
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
CTIA - THE WIRELESS ASSOCIATION;
COMPETITIVE CARRIERS
ASSOCIATION; SPRINT
CORPORATION; VERIZON
COMMUNICATIONS, INC.; CITY OF
NEW YORK, NEW YORK; WIRELESS
INFRASTRUCTURE ASSOCIATION,
Intervenors.
CITY OF PORTLAND V. UNITED STATES 9
CITY AND COUNTY OF SAN No. 19-70145
FRANCISCO,
Petitioner, FCC No.
18-133
v.
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents.
CITY OF HUNTINGTON BEACH, No. 19-70146
Petitioner,
FCC No.
v. 18-133
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
CITY OF ARCADIA, California; CITY
OF BELLEVUE, Washington; CITY OF
BURIEN, Washington; CITY OF
BURLINGAME, California; CITY OF
GIG HARBOR, Washington; CITY OF
ISSAQUAH, Washington; CITY OF
KIRKLAND, Washington; CITY OF
LAS VEGAS, Nevada; CITY OF LOS
ANGELES, California; CITY OF
MONTEREY, California; CITY OF
10 CITY OF PORTLAND V. UNITED STATES
ONTARIO, California; CITY OF
PIEDMONT, California; CITY OF
PORTLAND, Oregon; CITY OF SAN
JACINTO, California; CITY OF SAN
JOSE, California; CITY OF SHAFTER,
California; CITY OF YUMA, Arizona;
COUNTY OF LOS ANGELES,
California; CULVER CITY, California;
TOWN OF FAIRFAX, California; CITY
OF NEW YORK, New York,
Intervenors.
MONTGOMERY COUNTY, Maryland, No. 19-70147
Petitioner,
FCC No.
v. 18-133
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents.
AT&T SERVICES, INC., No. 19-70326
Petitioner,
FCC Nos.
v. 18-133
83-fr-51867
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
CITY OF PORTLAND V. UNITED STATES 11
Respondents,
CITY OF BALTIMORE, Maryland;
CITY AND COUNTY OF SAN
FRANCISCO, California; MICHIGAN
MUNICIPAL LEAGUE; CITY OF
ALBUQUERQUE, New Mexico;
NATIONAL LEAGUE OF CITIES; CITY
OF BAKERSFIELD, California; TOWN
OF OCEAN CITY, Maryland; CITY OF
BROOKHAVEN, Georgia; CITY OF
COCONUT CREEK, Florida; CITY OF
DUBUQUE, Iowa; CITY OF
EMERYVILLE, California; CITY OF
FRESNO, California; CITY OF LA
VISTA, Nebraska; CITY OF LACEY,
Washington; CITY OF MEDINA,
Washington; CITY OF OLYMPIA,
Washington; CITY OF PAPILLION,
Nebraska; CITY OF PLANO, Texas;
CITY OF RANCHO PALOS VERDES,
California; CITY OF ROCKVILLE,
Maryland; CITY OF SAN BRUNO,
California; CITY OF SANTA MONICA,
California; CITY OF SUGARLAND,
Texas; CITY OF TUMWATER,
Washington; CITY OF WESTMINSTER,
Maryland; COLORADO
COMMUNICATIONS AND UTILITY
ALLIANCE; CONTRA COSTA COUNTY,
California; COUNTY OF MARIN,
California; INTERNATIONAL
12 CITY OF PORTLAND V. UNITED STATES
CITY/COUNTY MANAGEMENT
ASSOCIATION; INTERNATIONAL
MUNICIPAL LAWYERS ASSOCIATION;
LEAGUE OF NEBRASKA
MUNICIPALITIES; NATIONAL
ASSOCIATION OF
TELECOMMUNICATIONS OFFICERS
AND ADVISORS; RAINIER
COMMUNICATIONS COMMISSION;
THURSTON COUNTY, Washington;
TOWN OF CORTE MADERA,
California; TOWN OF
HILLSBOROUGH, California; TOWN
OF YARROW POINT, Washington;
CITY OF ARCADIA, California; CITY
OF BELLEVUE, Washington; CITY OF
BURIEN, Washington; CITY OF
BURLINGAME, California; CITY OF
CULVER CITY , California; CITY OF
GIG HARBOR, Washington; CITY OF
ISSAQUAH, Washington; CITY OF
KIRKLAND, Washington; CITY OF
LAS VEGAS, Nevada; CITY OF LOS
ANGELES, California; CITY OF
MONTEREY, California; CITY OF
ONTARIO, California; CITY OF
PIEDMONT, California; CITY OF
PORTLAND, Oregon; CITY OF SAN
JACINTO, California; CITY OF SAN
JOSE, California; CITY OF SHAFTER,
California; CITY OF YUMA, Arizona;
COUNTY OF LOS ANGELES,
California; TOWN OF FAIRFAX,
CITY OF PORTLAND V. UNITED STATES 13
California,
Intervenors.
AMERICAN PUBLIC POWER No. 19-70339
ASSOCIATION,
Petitioner, FCC Nos.
18-133
v. 83-fr-51867
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
CITY OF ALBUQUERQUE, New
Mexico; NATIONAL LEAGUE OF
CITIES; CITY OF BROOKHAVEN,
Georgia; CITY OF BALTIMORE,
Maryland; CITY OF DUBUQUE, Iowa;
TOWN OF OCEAN CITY, Maryland;
CITY OF EMERYVILLE, California;
MICHIGAN MUNICIPAL LEAGUE;
TOWN OF HILLSBOROUGH,
California; CITY OF LA VISTA,
Nebraska; CITY OF MEDINA,
Washington; CITY OF PAPILLION,
Nebraska; CITY OF PLANO, Texas;
CITY OF ROCKVILLE, Maryland; CITY
OF SAN BRUNO, California; CITY OF
SANTA MONICA, California; CITY OF
SUGARLAND, Texas; LEAGUE OF
14 CITY OF PORTLAND V. UNITED STATES
NEBRASKA MUNICIPALITIES;
NATIONAL ASSOCIATION OF
TELECOMMUNICATIONS OFFICERS
AND ADVISORS; CITY OF
BAKERSFIELD, California; CITY OF
FRESNO, California; CITY OF
RANCHO PALOS VERDES, California;
CITY OF COCONUT CREEK, Florida;
CITY OF LACEY, Washington; CITY
OF OLYMPIA, Washington; CITY OF
TUMWATER, Washington; TOWN OF
YARROW POINT, Washington;
THURSTON COUNTY, Washington;
COLORADO COMMUNICATIONS AND
UTILITY ALLIANCE; RAINIER
COMMUNICATIONS COMMISSION;
CITY AND COUNTY OF SAN
FRANCISCO, California; COUNTY OF
MARIN, California; CONTRA COSTA
COUNTY, California; TOWN OF
CORTE MADERA, California; CITY OF
WESTMINSTER, Maryland,
Intervenors.
CITY OF AUSTIN, Texas; CITY OF No. 19-70341
ANN ARBOR, Michigan; COUNTY OF
ANNE ARUNDEL, Maryland; CITY OF FCC Nos.
ATLANTA, Georgia; CITY OF 18-133
BOSTON, Massachusetts; CITY OF 83-FR-51867
CHICAGO, Illinois; CLARK COUNTY,
Nevada; CITY OF COLLEGE PARK,
Maryland; CITY OF DALLAS, Texas;
CITY OF PORTLAND V. UNITED STATES 15
DISTRICT OF COLUMBIA; CITY OF
GAITHERSBURG, Maryland; HOWARD
COUNTY, Maryland; CITY OF
LINCOLN, Nebraska; MONTGOMERY
COUNTY, Maryland; CITY OF
MYRTLE BEACH, South Carolina;
CITY OF OMAHA, Nebraska; CITY OF
PHILADELPHIA, Pennsylvania; CITY
OF RYE, New York; CITY OF
SCARSDALE, New York; CITY OF
SEAT PLEASANT, Maryland; CITY OF
TAKOMA PARK, Maryland; TEXAS
COALITION OF CITIES FOR UTILITY
ISSUES; MERIDIAN TOWNSHIP,
Michigan; BLOOMFIELD TOWNSHIP,
Michigan; MICHIGAN TOWNSHIPS
ASSOCIATION; MICHIGAN COALITION
TO PROTECT PUBLIC RIGHTS-OF-
WAY,
Petitioners,
v.
FEDERAL COMMUNICATIONS
COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
CITY OF ALBUQUERQUE, New
Mexico; NATIONAL LEAGUE OF
CITIES; CITY OF BROOKHAVEN,
Georgia; CITY OF BALTIMORE,
16 CITY OF PORTLAND V. UNITED STATES
Maryland; CITY OF DUBUQUE, Iowa;
TOWN OF OCEAN CITY, Maryland;
CITY OF EMERYVILLE, California;
MICHIGAN MUNICIPAL LEAGUE;
TOWN OF HILLSBOROUGH,
California; CITY OF LA VISTA,
Nebraska; CITY OF MEDINA,
Washington; CITY OF PAPILLION,
Nebraska; CITY OF PLANO, Texas;
CITY OF ROCKVILLE, Maryland; CITY
OF SAN BRUNO, California; CITY OF
SANTA MONICA, California; CITY OF
SUGARLAND, Texas; LEAGUE OF
NEBRASKA MUNICIPALITIES;
NATIONAL ASSOCIATION OF
TELECOMMUNICATIONS OFFICERS
AND ADVISORS; CITY OF
BAKERSFIELD, California; CITY OF
FRESNO, California; CITY OF
RANCHO PALOS VERDES, California;
CITY OF COCONUT CREEK, Florida;
CITY OF LACEY, Washington; CITY
OF OLYMPIA, Washington; CITY OF
TUMWATER, Washington; TOWN OF
YARROW POINT, Washington;
THURSTON COUNTY, Washington;
COLORADO COMMUNICATIONS AND
UTILITY ALLIANCE; RAINIER
COMMUNICATIONS COMMISSION;
CITY AND COUNTY OF SAN
FRANCISCO, California; COUNTY OF
MARIN, California; CONTRA COSTA
COUNTY, California; TOWN OF
CITY OF PORTLAND V. UNITED STATES 17
CORTE MADERA, California; CITY OF
WESTMINSTER, Maryland,
Intervenors.
CITY OF EUGENE, Oregon; CITY OF No. 19-70344
HUNTSVILLE, Alabama; CITY OF
BOWIE, Maryland, FCC Nos.
Petitioners, 18-133
83-FR-51867
v.
FEDERAL COMMUNICATIONS OPINION
COMMISSION; UNITED STATES OF
AMERICA,
Respondents,
CITY OF ALBUQUERQUE, New
Mexico; NATIONAL LEAGUE OF
CITIES; CITY OF BROOKHAVEN,
Georgia; CITY OF BALTIMORE,
Maryland; CITY OF DUBUQUE, Iowa;
TOWN OF OCEAN CITY, Maryland;
CITY OF EMERYVILLE, California;
MICHIGAN MUNICIPAL LEAGUE;
TOWN OF HILLSBOROUGH,
California; CITY OF LA VISTA,
Nebraska; CITY OF MEDINA,
Washington; CITY OF PAPILLION,
Nebraska; CITY OF PLANO, Texas;
CITY OF ROCKVILLE, Maryland; CITY
18 CITY OF PORTLAND V. UNITED STATES
OF SAN BRUNO, California; CITY OF
SANTA MONICA, California; CITY OF
SUGARLAND, Texas; LEAGUE OF
NEBRASKA MUNICIPALITIES;
NATIONAL ASSOCIATION OF
TELECOMMUNICATIONS OFFICERS
AND ADVISORS; CITY OF
BAKERSFIELD, California; CITY OF
FRESNO, California; CITY OF
RANCHO PALOS VERDES, California;
CITY OF COCONUT CREEK, FLORIDA;
CITY OF LACEY, Washington; CITY
OF OLYMPIA, Washington; CITY OF
TUMWATER, Washington; TOWN OF
YARROW POINT, Washington;
THURSTON COUNTY, Washington;
COLORADO COMMUNICATIONS AND
UTILITY ALLIANCE; RAINIER
COMMUNICATIONS COMMISSION;
CITY AND COUNTY OF SAN
FRANCISCO, California; COUNTY OF
MARIN, California; CONTRA COSTA
COUNTY, California; TOWN OF
CORTE MADERA, California; CITY OF
WESTMINSTER, Maryland,
Intervenors.
CITY OF PORTLAND V. UNITED STATES 19
On Petitions for Review of Orders of the
Federal Communications Commission
Argued and Submitted February 10, 2020
Pasadena, California
Filed August 12, 2020
Before: Mary M. Schroeder, Jay S. Bybee, and
Daniel A. Bress, Circuit Judges.
Opinion by Judge Schroeder;
Partial Dissent by Judge Bress
SUMMARY*
Federal Communications Commission
The panel granted in part, and denied in part, petitions for
review of three orders of the Federal Communications
Commission (“FCC”) concerning the newest generation of
wireless broadband technology known as “5G” that requires
the installation of thousands of “small cell” wireless facilities.
Petitioners seeking review of the FCC orders are
numerous local governments, public and private power
utilities, and wireless service providers. The orders were
promulgated under the authority of the Telecommunications
Act of 1996 (the “Act”). The orders, issued in 2018, are
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
20 CITY OF PORTLAND V. UNITED STATES
known as the Small Cell Order, the Moratoria Order, and the
One Touch Make-Ready Order. The first two orders spelled
out the limits on local governments’ authority to regulate
telecommunications providers. The third order was intended
to prevent owners and operators of utility poles from
discriminatorily denying or delaying 5G and broadband
service providers access to the poles.
The panel held that, given the deference owed to the
agency in interpreting and enforcing the Act, the Small Cell
and Moratoria Orders were, with the exception of one
provision, in accord with the congressional directive in the
Act, and not otherwise arbitrary, capricious, or contrary to
law. The exception was the Small Cell Order provision
dealing with the authority of local governments in the area of
aesthetic regulations. The panel 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.” 47 U.S.C. § 332(c)(7)(B)(i)(I). The panel also
held that the FCC’s requirement that all aesthetic criteria
must be “objective” lacked a reasoned explanation. The
panel rejected constitutional challenges under the Fifth and
Tenth Amendments to both orders.
The panel upheld the One Touch Make-Ready Order.
The panel concluded that the FCC reasonably interpreted
Section 224 of the Act as a matter of law, and the Order was
not otherwise arbitrary or capricious. The panel rejected
petitioners’ challenges to four secondary aspects of the Order:
rules for overlashing, preexisting violations, self-help, and
CITY OF PORTLAND V. UNITED STATES 21
rate reform. The panel held that the rules were an
appropriate exercise of the FCC’s regulatory authority under
the Act.
The panel granted the petitions for review as to the FCC’s
requirement in the Small Cell Order that aesthetic regulations
be “no more burdensome” than requirements applied to other
infrastructure deployment, and the FCC’s requirement that all
local aesthetic regulations be “objective,” vacated those
portions of the rule, and remanded them to the FCC. The
petition of Montgomery County was dismissed as moot. As
to all other challenges, the panel denied the petitions for
review.
Judge Bress joined the majority opinion except as to Part
III.A.1, which upheld the FCC’s decision to preempt any fees
charged to wireless or telecommunications providers that
exceed a locality’s costs for hosting communications
equipment. In Judge Bress’s view, the FCC did not
adequately explain how all above-cost fees amounted to an
“effective prohibition” on telecommunications or wireless
service under 47 U.S.C. §§ 253(a) and 332(c)(7)(B)(i)(I).
Judge Bress would vacate this prohibition and remand.
22 CITY OF PORTLAND V. UNITED STATES
COUNSEL
Petitioners/Intervenors
Joseph Van Eaton (argued) and John Gasparini, Best Best &
Krieger LLP, Washington, D.C.; Gail A. Karish, Best Best &
Krieger LLP, Los Angeles, California; Michael J. Watza,
Kitch Drutchas Wagner Valitutti & Sherbrook, Detroit,
Michigan; for Petitioners/Intervenors Cities of San Jose,
Arcadia, Bellevue, Burien, Burlingame, Culver City, Gig
Harbor, Issaquah, Kirkland, Las Vegas, Los Angeles,
Monterey, Ontario, Piedmont, Portland, San Jacinto, Shafter,
Yuma, Albuquerque, Brookhaven, Baltimore, Dubuque,
Emeryville, La Vista, Medina, Papillion, Plano, Rockville,
San Bruno, Santa Monica, Sugarland, Austin, Ann Arbor,
Atlanta, Boston, Chicago, College Park, Dallas, Gaithersburg,
Lincoln, Myrtle Beach, Omaha, Philadelphia, Rye, Scarsdale,
Seat Pleasant, and Takoma Park; Los Angeles, Anne Arundel,
Clark, Howard, and Montgomery Counties; Towns of Fairfax,
Ocean City, and Hillsborough; Townships of Meridian and
Bloomfield, Michigan Townships Association; District of
Columbia; Michigan Coalition to Protect Public Rights-of-
Way, National League of Cities, Michigan Municipal League,
League of Nebraska Municipalities, and Texas Coalition of
Cities for Utility Issues.
Sean A. Stokes (argued) and James Baller, Baller Stokes &
Lide PC, Washington, D.C., for Petitioner American Public
Power Association.
Eric P. Gotting (argued), Keller and Heckman LLP,
Washington, D.C., for Petitioners/Intervenors Montgomery
County, Maryland; and International Municipal Lawyers
CITY OF PORTLAND V. UNITED STATES 23
Association; International City/County Management
Association.
Eric B. Langley (argued) and Robin F. Bromberg, Langley &
Bromberg LLC, Birmingham, Alabama, for Petitioners
American Electric Power Service Corporation, Duke Energy
Corporation, Entergy Corporation, Oncor Electric Delivery
Company, Southern Company, and Tampa Electric Company.
Joshua S. Turner (argued), Sara M. Baxenburg, and Boyd
Garriott, Wiley Rein LLP, Washington, D.C.; Thomas Power,
Senior Vice President and General Counsel, CTIA - The
Wireless Association, Washington, D.C.; for Intervenor CTIA
- The Wireless Association.
Claire J. Evans (argued) and Christopher S. Huther, Wiley
Rein LLP, Washington, D.C., for Intervenor US
Telecom—The Broadband Association.
Kenneth S. Fellman and Gabrielle A. Daley, Kissinger &
Fellman PC, Denver, Colorado; Robert C. May III and
Michael D. Johnston, Telecom Law Firm PC, San Diego,
California; for Petitioners/Intervenors Cities of Bakersfield,
Coconut Creek, Fresno, Lacey, Olympia, Rancho Palos
Verdes, Seattle, Tacoma, Tumwater; Town of Yarrow Point;
King and Thurston Counties; League of Oregon Cities,
League of California Cities, League of Arizona Cities and
Towns, Colorado Communications and Utility Alliance, and
Rainier Communications Commission.
Brett H. Freedson, Charles A. Zdebski, and Robert J. Gastner,
Eckert Seamans Cherin & Mellott LLC, Washington, D.C.,
for Petitioners CenterPoint Energy Houston Electric and
Virginia Electric and Power Company.
24 CITY OF PORTLAND V. UNITED STATES
David D. Rines and Kevin M. Cookler, Lerman Senter PLLC,
Washington, D.C., for Petitioner Xcel Energy Services.
Christopher J. Wright and E. Austin Bonner, Harris Wiltshire
& Grannis LLP, Washington, D.C., for Petitioner/Intervenor
Sprint Corporation.
Sean A. Lev and Frederick Gaston Hall, Kellogg Hansen
Todd Figel & Frederick P.L.L.C., Washington, D.C., for
Petitioner AT&T Services.
Henry Weissmann, Munger Tolles & Olson LLP, Los
Angeles, California; Jonathan Meltzer, Munger Tolles &
Olson LLP, Washington, D.C.; for Petitioner/Intervenor
Verizon Communications.
Megan L. Brown and Jeremy J. Broggi, Wiley Rein LLP,
Washington, D.C., for Petitioner Puerto Rico Telephone
Company.
Tillman L. Lay and Jeffrey M. Bayne, Spiegel & McDiarmid
LLP, Washington, D.C., Dennis J. Herrera, City Attorney;
Theresa L. Mueller, Chief Energy and Telecommunications
Deputy; William K. Sanders, Deputy City Attorney; Office of
the City Attorney, San Francisco, California; for
Petitioners/Intervenors Cities of Eugene, Huntsville, Bowie,
Westminster; Town of Corte Madera; and Counties of San
Francisco, Marin, and Contra Costa.
Michael E. Gates, City Attorney; Michael J. Vigliotta, Chief
Assistant City Attorney; Office of the City Attorney,
Huntington Beach, California; for Petitioner City of
Huntington Beach.
CITY OF PORTLAND V. UNITED STATES 25
Nancy L. Werner, General Counsel, Alexandria, Virginia, as
and for Intervenor National Association of
Telecommunications Officers and Advisors.
Zachary W. Carter, Corporation Counsel; Richard Dearing,
Claude S. Platton, and Elina Druker, Attorneys; Office of
Corporation Counsel, New York, New York; for Intervenor
City of New York.
Amanda Kellar and Charles W. Thompson Jr., Rockville,
Maryland; for Intervenors International Municipal Lawyers
Association and International City/County Management
Association.
Jennifer P. Bagg, Harris Wiltshire & Grannis LLP,
Washington, D.C., for Intervenor Competitive Carriers
Association.
Thomas Scott Thompson and Patrick Curran, Davis Wright
Tremaine LLP, Washington, D.C.; for Intervenor Wireless
Infrastructure Association.
Respondents
Sarah E. Citrin (argued), Scott M. Noveck (argued), and
James M. Carr (argued), Counsel; Richard K. Welch, Deputy
Associate General Counsel; Jacob M. Lewis, Associate
General Counsel; Thomas M. Johnson Jr., General Counsel;
Federal Communications Commission, Washington, D.C.;
Robert B. Nicholson, Adam D. Chandler and Patrick M.
Kuhlmann, Attorneys; Michael F. Murray, Deputy Assistant
Attorney General; Andrew C. Finch, Principal Deputy
Assistant Attorney General; Makan Delrahim, Assistant
Attorney General; United States Department of Justice,
26 CITY OF PORTLAND V. UNITED STATES
Washington, D.C.; for Respondents United States of America
and Federal Communications Commission.
Amici Curiae
James E. Moore and Tim R. Shattuck, Woods Fuller Shultz
& Smith P.C., Sioux Falls, South Dakota, for Amicus Curiae
Missouri Basin Municipal Power Agency.
Ellen F. Rosenblum, Attorney General; Benjamin Gutman,
Solicitor General; Rolf C. Moan, Senior Assistant Attorney
General; Office of the Attorney General, Salem, Oregon; for
Amicus Curiae State of Oregon.
Thomas E. Montgomery, County Counsel; Jeffrey P.
Michalowski, Senior Deputy; Office of County Counsel, San
Diego, California; for Amicus Curiae County of San Diego.
Spencer Q. Parsons, Beery Elsner & Hammond LLP,
Portland, Oregon, for Amici Curiae Nebraska Municipal
Power Pool and Lincoln Electric System.
Gerit F. Hull, Jennings Strouss & Salmon PLC, Washington,
D.C.; Lisa G. McAlister, SVP & General Counsel for
Regulatory Affairs; American Municipal Power Inc.,
Columbus, Ohio; for Amicus Curiae American Municipal
Power Inc.
Emily Fisher, Aryeh Fishman, and Amanda Aspatore, Edison
Electric Institute, Washington, D.C.; Brett Kilbourne, Vice
President Policy and General Counsel, Utilities Technology
Council, Arlington, Virginia; Jeffrey L. Sheldon and Stephen
J. Rosen, Levine Blaszak Block & Boothby LLP,
Washington, D.C.; Brian O’Hara, Senior Director Regulatory
CITY OF PORTLAND V. UNITED STATES 27
Issues, National Rural Electric Cooperative Association,
Arlington, Virginia; for Amici Curiae Edison Electric
Institute, Utilities Technology Council, and National Rural
Electric Cooperative Association.
Matthew A. Love, Van Ness Feldman LLP, Seattle,
Washington, for Amicus Curiae Northwest Public Power
Association.
Sblend A. Sblendorio, Mallory L. Homewood, and Cara Mae
Acibo, Hoge Fenton Jones & Appel Inc., Pleasanton,
California, for Amicus Curiae Berkshire-Litchfield
Environmental Council.
Terry M. Jarrett, Healy Law Offices LLC, Jefferson City,
Missouri, for Amici Curiae Iowa Association of Municipal
Utilities Association, Missouri Association of Municipal
Utilities, and Arkansas Municipal Power Association.
W. Scott Snyder, Ogden Murphy Wallace, Seattle,
Washington, for Amicus Curiae Association of Washington
Cities.
David A. Rosenfeld, Weinberg Roger & Rosenfeld, Alameda,
California, for Amici Curiae Communications Workers of
America, National Digital Inclusion Alliance, and Public
Knowledge.
Jane Luckhardt, General Counsel, Northern California Power
Agency, Roseville, California; Jody Lamar Finklea, General
Counsel & Chief Legal Officer; Dan O’Hagan, Assistant
General Counsel & Regulatory Compliance Counsel; Florida
Municipal Power Agency, Tallahassee, Florida; James N.
Horwood and Latif M. Nurani, Spiegel & McDiarmid LLP,
28 CITY OF PORTLAND V. UNITED STATES
Washington, D.C.; for Amici Curiae Northern California
Power Agency; Municipal Electric Power Association of
Virginia; Florida Municipal Electric Association, Inc.; City
of Fort Meade; Fort Pierce Utilities Authority; City of
Jacksonville Beach (Beaches Energy Services); Utility Board
of the City of Key West, Florida (Keys Energy Services);
Kissimmee Utility Authority; City of Lakeland (Lakeland
Electric); City of Mount Dora; Utilities Commission, City of
New Smyrna Beach; Orlando Utilities Commission; and City
of Wauchula.
CITY OF PORTLAND V. UNITED STATES 29
OPINION
SCHROEDER, Circuit Judge:
I. INTRODUCTION
These matters arise out of the wireless revolution that has
taken place since 1996 when Congress passed amendments to
the Telecommunications Act to support the then nascent
technology. The revolution now represents the triumph of
cellular technology over just about everything else in
telecommunications services.
The newest generation of wireless broadband technology
is known as “5G” and requires the installation of thousands
of “small cell” wireless facilities. These facilities have
become subject to a wide variety of local regulations. The
Federal Communications Commission (FCC) in 2018
therefore promulgated orders relating to the installation and
management of small cell facilities, including the manner in
which local governments can regulate them. The principal
orders we review here thus constitute the FCC’s
contemporary response to these technological and regulatory
developments. These orders were promulgated under the
authority of a statute Congress enacted very early in the era
of cellular communication, the Telecommunications Act of
1996, to encourage the expansion of wireless
communications.
That expansion has been met with some resistance where
5G is concerned, however, particularly from local
governments unhappy with the proliferation of cell towers
and other 5G transmission facilities dotting our urban
landscapes. Petitioners seeking review of the FCC orders
30 CITY OF PORTLAND V. UNITED STATES
thus include numerous local governments, the lead Petitioner
being the City of Portland, Oregon. Also unhappy with the
expanded installation of 5G technology contemplated by the
FCC’s orders are public and private power utilities, whose
utility poles are often used for wireless facility deployment.
Here as well are wireless service providers, who largely
support the FCC’s orders, but argue the FCC should have
gone even further in restricting the authority of state and local
governments.
Before us are three FCC orders, issued in 2018, that deal
with myriad issues arising from the application of a twentieth
century statute to twenty-first century technology. The two
orders we deal with first are known as the Small Cell Order
and the Moratoria Order. Accelerating Wireless Broadband
Deployment by Removing Barriers to Infrastructure Inv.,
33 FCC Rcd. 9088 (2018) [hereinafter Small Cell Order];
Accelerating Wireless Broadband Deployment by Removing
Barriers to Infrastructure Inv., 33 FCC Rcd. 7705, 7775–91
(2018) [hereinafter Moratoria Order]. The Orders spell out
the limits on local governments’ authority to regulate
telecommunications providers.
The FCC’s statutory authority for limiting local regulation
on the deployment of this technology is contained in Sections
253(a) and 332(c)(7) of the Act and reflects congressional
intent in 1996 to expand deployment of wireless services.
Those provisions authorize the FCC to preempt any state and
local requirements that “prohibit or have the effect of
prohibiting” any entity from providing telecommunications
services. See 47 U.S.C. § 253(a), (d).
Many of the issues before us concern whether challenged
provisions constitute excessive federal regulation outside the
CITY OF PORTLAND V. UNITED STATES 31
scope of that congressional preemption directive, as
understood by our Circuit’s leading case interpreting the
statute, Sprint Telephony PCS, L.P. v. County of San Diego,
543 F.3d 571 (9th Cir. 2008) (en banc). We conclude that,
given the deference owed to the agency in interpreting and
enforcing this important legislation, the Small Cell and
Moratoria Orders are, with the exception of one provision, in
accord with the congressional directive in the Act, and not
otherwise arbitrary, capricious, or contrary to law. See
5 U.S.C. § 706(2)(A).
The exception is the Small Cell Order provision dealing
with the authority of local governments in the area of
aesthetic regulations. We hold that to the extent that
provision requires small cell facilities to be treated in the
same manner as other types of communications services, the
regulation is contrary to the congressional directive that
allows different regulatory treatment among types of
providers, so long as such treatment does not “unreasonably
discriminate among providers of functionally equivalent
services.” 47 U.S.C § 332(c)(7)(B)(i)(I). We also hold that
the FCC’s requirement that all aesthetic criteria must be
“objective” lacks a reasoned explanation.
The third FCC order before us is intended to prevent
owners and operators of utility poles from discriminatorily
denying or delaying 5G and broadband service providers
access to the poles. Accelerating Wireless Broadband
Deployment by Removing Barriers to Infrastructure Inv.,
33 FCC Rcd. 7705, 7705–91 (2018). Known as the “One-
Touch Make-Ready Order,” it was issued pursuant to the Pole
Attachment Act originally passed in 1978 and expanded in
the wake of the Telecommunications Act of 1996. 47 U.S.C.
§ 224. Section 224 of that Act allows utilities to deny access
32 CITY OF PORTLAND V. UNITED STATES
to pole attachers under some circumstances. Several utilities
object to discrete aspects of the One-Touch Make-Ready
Order. We uphold the Order, concluding that the FCC
reasonably interpreted Section 224 as a matter of law, and the
Order is not otherwise arbitrary or capricious.
II. STATUTORY AND INTERPRETIVE
FRAMEWORK AND BACKGROUND
What we know as 5G technology is so named because it
is the fifth generation of cellular wireless technology. It is
seen as transformational because it provides increased
bandwidth, allows more devices to be connected at the same
time, and is so fast that connected devices receive near
instantaneous responses from servers.
Although 5G transmits data at exceptionally fast speeds,
it does so over relatively short distances. For this reason,
wireless providers must use smaller power-base stations in
more locations, as opposed to the fewer, more powerful base
stations used for 4G data transmission. These smaller base
stations, known as “small cells,” are required in such numbers
that 5G technology is currently being deployed on a city-by-
city basis. See generally Brian X. Chen, What You Need to
Know About 5G in 2020, N.Y. Times (Jan. 8, 2020),
https://www.nytimes.com/2020/01/08/technology/personalt
ech/5g-mobile-network.html?searchResultPosition=1; Clare
Duffy, What Is 5G? Your Questions Answered, CNN
Business (Mar. 6, 2020), https://www.cnn.com/interactive/
2020/03/business/what-is-5g/index.html; Sascha Segan, What
Is 5G?, PCMag (Apr. 6, 2020), https://www.pcmag.com/ne
ws/what-is-5g. The prospective proliferation of “small cell”
structures throughout our cities, coupled with the inevitable
efforts of local governments to regulate their looks and
CITY OF PORTLAND V. UNITED STATES 33
location, gave rise to the FCC’s Small Cell and Moratoria
Orders—with which local governments are not entirely happy
and which were issued under the general provisions of a
decades-old statute.
The heart of these proceedings therefore lies in the early
efforts of Congress, and now the FCC, to balance the
respective roles of the federal government and local agencies
in regulating telecommunications services for a rapidly
changing technological world. A key statute in these
proceedings is Section 253 of the Act. Entitled “Removal of
Barriers to Entry,” it reflects Congress’s intent to encourage
expansion of telecommunication service. Section 253(a)
provides that “[n]o state or local statute or regulation . . . may
prohibit or have the effect of prohibiting . . .
telecommunications service.” 47 U.S.C. § 253(a). At the
same time Section 253(c) provides that state or local
governments can manage public rights-of-way and require
reasonable compensation for their use. 47 U.S.C. § 253(c).
In dealing with mobile services, Section 332(c)(7)
similarly preserves local zoning authority while recognizing
some specific limitations on traditional authority to regulate
wireless facilities. 47 U.S.C. § 332(c)(7); see City of Rancho
Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005)
(explaining that section 332(c)(7) “imposes specific
limitations on the traditional authority of state and local
governments to regulate the location, construction, and
modification of . . . facilities”). Section 332(c)(7) also
contains a limitation on local authority nearly identical to
Section 253(a). See 47 U.S.C. § 332(c)(7)(B)(i)(II) (“The
regulation of the placement, construction, and modification
of personal wireless service facilities by any State or local
government . . . shall not prohibit or have the effect of
34 CITY OF PORTLAND V. UNITED STATES
prohibiting the provision of personal wireless services.”).
The other major limitation on local authority relates to
ensuring fair treatment of different services. See 47 U.S.C.
§ 332(c)(7)(B)(i)(I). Under that limitation, local governments
“shall not unreasonably discriminate among providers of
functionally equivalent services.” Id. Section 332(c)(7)
further requires that state or local governments act on
requests for placement of personal wireless service facilities
“within a reasonable period of time.” 47 U.S.C.
§ 332(c)(7)(B)(ii). We deal with issues pertaining to all of
these provisions in the challenges to the Small Cell and
Moratoria Orders.
In the One-Touch Make-Ready Order, the FCC was
concerned with facilitating attachment of new cellular
facilities to existing utility poles. The FCC’s authority to
regulate pole attachments is found in Section 224 of the Act.
That section provides that the FCC “shall regulate the rates,
terms, and conditions” imposed upon pole attachments by
utilities to ensure that such rates are “just and reasonable,”
47 U.S.C. § 224(b)(1), but expressly exempts entities “owned
by the Federal Government or any State” from its definition
of “utility,” id. § 224(a)(1). Section 224 also requires utilities
to allow service providers “nondiscriminatory access” to its
poles, id. § 224(f)(1), permitting utilities to deny access “on
a non-discriminatory basis where there is insufficient capacity
and for reasons of safety, reliability and generally applicable
engineering purposes,” id. § 224(f)(2).
In their petitions, private utilities contend several
provisions of the One-Touch Make-Ready Order violate
Section 224 or are otherwise arbitrary or capricious in
restricting a utility’s ability to deny access to attachers. We
uphold this Order in all respects.
CITY OF PORTLAND V. UNITED STATES 35
As relevant to this litigation, the most disputed provision
of the Act has been Section 253(a). The provision says that
“[n]o State or local statute or regulation, or other State or
local legal requirement, may prohibit or have the effect of
prohibiting the ability of any entity to provide any interstate
or intrastate telecommunications service.” 47 U.S.C.
§ 253(a). Soon after the Act’s passage, the FCC decided
California Payphone Association, concerning the location of
the now antiquated, but formerly ubiquitous, payphone
technology. 12 FCC Rcd. 14,191 (1997). The FCC
considered a local regulation that prohibited the installation
of payphones on private property outdoors, and held it was
not an actual or effective prohibition of services, because
phones could still be installed indoors on public or private
property, and outdoors on public property. Id. at 14,210. The
FCC therefore held the requirement did not “materially
inhibit[]” payphone service. Id. at 14,210.
This court’s leading case interpreting Section 253 is our
en banc decision in Sprint, 543 F.3d 571. We there
straightened out an errant panel decision that had been
concerned with the phrase “no State or local statute or
regulation . . . may prohibit . . . ” in Section 253. That
decision read the phrase to mean that Section 253 preempted
any state or local regulation that “might possibly” have the
effect of prohibiting service. Id. at 578. We held in Sprint
that more than “the mere possibility” of prohibition was
required to trigger preemption. Id. There must be an actual
effect, and we recognized the continuing validity of the
material inhibition test from California Payphone. See id.(“[W]e note that our interpretation is consistent with the
FCC’s.”).
36 CITY OF PORTLAND V. UNITED STATES
Many of the issues we must decide here involve
contentions by Petitioners that various provisions of the
Small Cell and Moratoria Orders limit state and local
regulatory authority to a greater degree than that
contemplated in the Act, as interpreted by California
Payphone and Sprint. The application of the FCC’s “material
inhibition” standard thus comes into play when we consider
a number of the challenged provisions.
As a threshold issue, Local Government Petitioners argue
that the FCC must demonstrate that an “actual prohibition” of
services is occurring before preempting any municipal
regulations, and that anything less than that showing is
contrary to Section 253(a) and our decision in Sprint. We
must reject this argument. The FCC’s application of its
standard in the Small Cell and Moratoria Orders is consistent
with Sprint, which endorsed the material inhibition standard
as a method of determining whether there has been an
effective prohibition. The FCC here made factual findings,
on the basis of the record before it, that certain municipal
practices are materially inhibiting the deployment of 5G
services. Nothing more is required of the FCC under Sprint.
Local Government Petitioners raise a corollary general
objection to the Small Cell and Moratoria Orders, contending
that the FCC, without a reasoned explanation, has departed
from its prior approach in California Payphone, and has made
it much easier to show an effective prohibition. California
Payphone’s material inhibition standard remains controlling,
however. The FCC has explained that it applies a little
differently in the context of 5G, because state and local
regulation, particularly with respect to fees and aesthetics, is
more likely to have a prohibitory effect on 5G technology
than it does on older technology. The reason is that when
CITY OF PORTLAND V. UNITED STATES 37
compared with previous generations of wireless technology,
5G is different in that it requires rapid, widespread
deployment of more facilities. See, e.g., Small Cell Order
¶ 53 (explaining that “even fees that might seem small in
isolation have material and prohibitive effects on deployment,
particularly when considered in the aggregate given the
nature and volume of anticipated Small Wireless Facility
deployment” (footnote omitted)). The differences in the
FCC’s new approach are therefore reasonably explained by
the differences in 5G technology.
We therefore turn to Petitioners’ challenges to specific
provisions of the Orders. We deal with the Small Cell and
Moratoria Orders together. Both Orders relate to the ways
state and local governments can permissibly regulate small
cell facilities.
III. SMALL CELL AND MORATORIA ORDERS
The FCC initiated proceedings leading to the Small Cell
and Moratoria Orders in response to complaints from wireless
service providers. They reported that a variety of state and
local regulations and practices were delaying and inhibiting
small cell deployment nationwide in violation of Section 253.
Those state and local governments now seek review of the
Orders. We here summarize the challenged provisions of
each Order.
The FCC issued the Moratoria Order in August 2018, and
the Small Cell Order the following month. Two principal
types of state and local regulation the agency considered
relate to fees and aesthetic requirements. The FCC concluded
such requirements frequently materially inhibit 5G
deployment. The FCC found that when state and local
38 CITY OF PORTLAND V. UNITED STATES
governments charge excessive fees for wireless facility
applications, the cumulative impact of such charges amounts
to an effective prohibition of deployment in other parts of the
country. The FCC therefore limited the fees that a state or
local government can assess, above a safe harbor amount, to
the government’s approximate costs. Specifically, the fee is
permissible only if it is a “reasonable approximation of the
state or local government’s costs” of processing applications
and managing the rights-of-way. Small Cell Order ¶ 50.
With respect to local aesthetic requirements, the FCC
concluded such regulations were materially inhibiting small
cell deployment within the meaning of the California
Payphone standard. A key provision of the Small Cell Order
sets out the applicable criteria: aesthetic restrictions are
preempted unless they are (1) reasonable, (2) no more
burdensome than requirements placed on other facilities, and
(3) objective and published in advance. Id. ¶ 86. To qualify
as a “reasonable” aesthetic requirement, an ordinance must be
both “technically feasible and reasonably directed to avoiding
or remedying the intangible public harm of unsightly or out-
of-character deployments.” Id. ¶ 87.
Another important provision of the Small Cell Order
modified the rules for when local jurisdictions have to act on
wireless permitting requests, the so-called “shot clock” rules.
Nearly a decade earlier, the FCC adopted the first shot clock
rules, requiring zoning authorities to decide applications for
wireless facility deployment on existing structures within
ninety days, and all other applications for zoning permits
within 150 days. Petition for Declaratory Ruling, 24 FCC
Rcd. 13,994 (2009) [hereinafter 2009 Order]; see City of
Arlington v. FCC, 668 F.3d 229, 235–36 (5th Cir. 2012),
aff’d, 569 U.S. 290 (2013). Under the 2009 Order, when a
CITY OF PORTLAND V. UNITED STATES 39
local zoning authority exceeded a shot clock, it was presumed
that the municipality violated the statutory requirement to
respond within a reasonable time. City of Arlington, 668 F.3d
at 236. When a local zoning authority failed to act within the
proscribed time, the permit applicant could then file a lawsuit
seeking a declaration that the city’s delay was unreasonable,
and the city would have the opportunity to rebut the presumed
statutory violation. 2009 Order ¶¶ 37–38.
The 2018 Small Cell Order broadens the application of
these shot clocks to include all telecommunications permits,
not just zoning permits, and it shortens the shot clocks. State
and local governments now have sixty days to decide
applications for installations on existing infrastructure, and
ninety days for all other applications. Small Cell Order
¶¶ 104–05, ¶ 132, ¶ 136. The Order does not add
enforcement mechanisms. If a state or local government
misses a permitting deadline, the applicant still must seek an
injunction.
In the Moratoria Order, the FCC found that municipal
actions that halt 5G deployment, deemed “moratoria,” violate
Section 253(a) of the Act when they effectively prohibit the
deployment of 5G technology. The FCC recognized two
general moratoria categories: express and de facto. As with
the Small Cell Order, the Moratoria Order does not
specifically preempt or invalidate any particular state or local
requirement. See Moratoria Order ¶ 150. (“[W]e do not
reach specific determinations on the numerous examples
discussed by parties in our record . . . .”). It lays out the
applicable standards.
40 CITY OF PORTLAND V. UNITED STATES
A. Challenges to the Small Cell Order
Following the publication of the Small Cell Order, Local
Government and Public Power Petitioners filed these
petitions for review, asserting a number of legal challenges.
We evaluate these challenges under the Administrative
Procedure Act by examining whether “an agency’s decreed
result [is] within the scope of its lawful authority,” and
whether “the process by which it reaches [a given] result [is]
logical and rational.” Michigan v. EPA, 135 S. Ct. 2699,
2706 (2015) (internal quotation marks omitted); see 5 U.S.C.
§ 706(2)(A), (C). Where terms of the Telecommunications
Act are ambiguous, we defer to the FCC’s reasonable
interpretations. City of Arlington, 569 U.S. at 296–97; see
Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984). And
where the FCC is departing from prior policy, we look to see
if it acknowledged that it was changing positions, and gave
“good reasons for the new policy.” FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009).
To the extent that Petitioners challenge factual findings,
we review them for substantial evidence, that is, evidence “a
reasonable mind might accept as adequate to support a
conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154
(2019) (internal quotation marks omitted). “[W]hatever the
meaning of substantial in other contexts, the threshold for
such evidentiary sufficiency is not high.” Id. (internal
quotation marks omitted).
The Small Cell Order covers three major subjects and sets
out the standards by which local regulations will be judged in
determining whether they are preempted. Local Government
Petitioners are not happy with any of them. The subjects are
CITY OF PORTLAND V. UNITED STATES 41
fees, aesthetics, and the time for approving permit
applications (shot clocks). We deal with each of them in turn.
1. Fees
State and local governments generally charge a wireless
service provider fees to deploy facilities in their jurisdictions.
These fees include one-time fees for new wireless facility
deployment, as well as recurring annual fees on existing
facilities in the public rights-of-way. The FCC concluded in
the Small Cell Order that some of these fees were so
excessive that they were effectively prohibiting the
nationwide deployment of 5G technology and were therefore
preempted. The Order places conditions on fees above a
certain level to avoid preemption: fees must be: “(1) a
reasonable approximation of the state or local government’s
costs, (2) [with] only objectively reasonable costs . . . factored
into those fees, and (3) . . . no higher than the fees charged to
similarly-situated competitors in similar situations.” Small
Cell Order ¶ 50 (footnote omitted).
The Small Cell Order does not require a cost basis for all
fees to avoid preemption. There is a safe harbor. Fees are
presumptively lawful if, for each wireless facility, application
fees are less than $500, and recurring fees are less than $270
per year. Id. ¶ 79. If fees exceed those levels, they are not
automatically preempted, but can be justified. Localities may
charge fees above these levels where they can demonstrate
that their actual costs exceed the presumptive levels. Id. ¶ 80
& n.234.
The FCC offers two principal rationales for limiting fees
above the safe harbor to costs. When local governments
charge fees in excess of their costs, they take funds of
42 CITY OF PORTLAND V. UNITED STATES
wireless service providers that would otherwise be used for
additional 5G deployment in other jurisdictions. Statements
in the record from wireless service providers, and an
empirical study, are cited to support the conclusion that
limiting fees will lead to additional, faster deployment of 5G
technology throughout the country. See Small Cell Order
¶¶ 61–64. The FCC explained that high fees also reduce the
availability of service in the jurisdiction charging the fee. Id.
¶ 53. The FCC points to numerous, geographically diverse
cities, where excessive fees are delaying deployment of 5G
services. In one example, deployment had to be completely
halted when a city tried to charge a one-time fee of $20,000
per small cell, with an additional recurring annual fee of
$6000.
Local Government Petitioners challenge the fee
limitations on a number of grounds. Their primary argument
is that there is no rational connection between whether a
particular fee is higher than that particular city’s costs, and
whether that fee is prohibiting service.
The FCC did not base its fee structure on a determination
that there was a relationship between particular cities’ fees
and prohibition of services. The FCC instead found that
above-cost fees, in the aggregate, were having a prohibitive
effect on a national basis. See id. ¶ 53 (explaining that “even
fees that might seem small in isolation have material and
prohibitive effects on deployment, particularly when
considered in the aggregate given the nature and volume of
anticipated Small Wireless Facility deployment” (footnote
omitted)).
The FCC found there was no readily-available alternative.
See id. ¶ 65 n.199 (explaining that “the record does not reveal
CITY OF PORTLAND V. UNITED STATES 43
an alternative, administrable approach to evaluating fees
without a cost-based focus”). Administrability is important.
In Mayo Foundation for Medical Education & Research v.
United States, 562 U.S. 44, 58–59 (2011), the Supreme Court
explained that an agency’s rule “easily” satisfies Chevron’s
step two, reasonable interpretation requirement, when the
agency concluded that its new approach would “improve
administrability.” As the FCC explained here, its cost-based
standard would prevent excessive fees and the effective
prohibition of 5G services in many areas across the country.
Local Government Petitioners are implicitly suggesting an
alternative approach that would require an examination of the
prohibitive effect of fees in each of the 89,000 state and local
governments under the FCC’s jurisdiction, a nearly
impossible administrative undertaking. Local Government
Petitioners do not contend that this is required by statute, nor
do they offer any other workable standard. The FCC here
made the requisite “rational connection between the facts
found and the choice made.” Burlington Truck Lines v.
United States, 371 U.S. 156, 168 (1962).
Our colleague’s partial dissent offers one legal objection
to the fee regulation. The dissent quotes language from our
decision in Qwest Communications Inc. v. City of Berkeley,
433 F.3d 1253, 1257 (9th Cir. 2006), overruled on other
grounds by Sprint Telephony, 543 F.3d at 578, to suggest that
the FCC’s cost based fee regulation should be vacated
because it contravenes our precedent. In Qwest, however, we
considered a challenge to a particular city’s fee that was not
based on costs. On the basis of then-binding authority we
held that city’s fee was preempted, but cautioned that we
were not holding that “all non-cost based fees are
automatically preempted.” Id. at 1257. Instead we said that
44 CITY OF PORTLAND V. UNITED STATES
in reviewing a particular city’s ordinance “courts must
consider substance of the particular regulation at issue.” Id.
The Qwest language has no relevance in this case where
we review a nationwide administrative regulation the FCC
has adopted, after careful study and notice and comment, that
invokes Section 253(a) to preempt only those fees above the
safe harbor that exceed municipalities’ costs. There has been
no “automatic preemption” of “all non-cost based fees.”
Local Government Petitioners also attack the FCC’s key
factual finding, that high fees were inhibiting deployment
both within and outside the jurisdictions charging the fees.
Yet, the FCC had statements from wireless service providers,
which explained that the providers have been unable to
deploy small cells in many cities because both original
application and annually recurring fees were excessive. For
example, AT&T reported it has been unable to deploy in
Portland due to recurring annual fees ranging from $3500 to
$7500 per node.
The record also supports the FCC’s factual conclusion
that high fees in one jurisdiction can prevent deployment in
other jurisdictions. In addition to relying on firsthand reports
of service providers, the FCC looked to an academic study,
known as the Corning Study. A group of economists there
estimated that limiting 5G fees could result in carriers
reinvesting an additional $2.4 billion in areas “previously not
economically viable.” The FCC reasonably relied upon this
study to support its conclusion that a nationwide reduction in
fees in “must-serve,” heavily-populated areas, would result in
significant additional deployment of 5G technology in other
less lucrative areas of the country. The FCC therefore has
easily met the standard of offering “more than a mere
CITY OF PORTLAND V. UNITED STATES 45
scintilla” of evidence to support its conclusions regarding the
prohibitive effect of above-cost fees. See Biestek, 139 S. Ct.
at 1154.
We also conclude that the FCC’s fee limitation does not
violate Section 253(c) of the Act, which ensures that cities
receive “fair and reasonable” compensation for use of their
rights-of-way. The FCC explained that the calculation of
actual, direct costs is a well-accepted method of determining
reasonable compensation, and further, that a standard lacking
a cost anchor would “have left providers entirely at the mercy
of effectively unconstrained requirements of state or local
governments.” Small Cell Order ¶ 74. The statute requires
that compensation be “fair and reasonable;” this does not
mean that state and local governments should be permitted to
make a profit by charging fees above costs. 47 U.S.C.
§ 253(c). The FCC’s approach to fees is consistent with the
language and intent of Section 253(c) and is reasonably
explained.
Moreover, the FCC did not require local jurisdictions to
justify all fees with costs. The FCC adopted presumptively
permissible fee levels. In setting those levels, the FCC
looked to a range of sources, including state laws that limit
fees. See Small Cell Order ¶ 78, ¶ 79 n.233. Local
Government Petitioners argue that the FCC was in effect,
setting rates, and that it was arbitrary and capricious to do so,
when it could reference only a few state laws. The FCC was
not setting rates, however; it was determining a level at which
fees would be so clearly reasonable that justification was not
necessary, and litigation could be avoided. The presumptive
levels are not arbitrary and capricious.
46 CITY OF PORTLAND V. UNITED STATES
2. Aesthetics
Local governments have always been concerned about
where utilities’ infrastructure is placed and what it looks like.
When Congress enacted the 1996 Telecommunications Act,
it wanted to ensure state and local governments grant fair
access to new technologies, and not prefer incumbent service
providers over new entrants. Congress recognized that state
and local governments could effect such preferential
treatment through a wide array of regulations, including
regulations on aesthetics. An important provision to prevent
this is Section 332(c)(7)(B)(i)(I). It requires that “[t]he
regulation of . . . personal wireless service facilities by any
State or local government . . . shall not unreasonably
discriminate among providers of functionally equivalent
services.” 47 U.S.C. § 332(c)(7)(B)(i)(I). The legislators
who drafted this limitation on local regulation sought to
ensure that state and local governments did not “unreasonably
favor one competitor over another” in exercising their
regulatory authority over facility deployments—including
authority to regulate aesthetics. S. Rep. No. 104-230, at 209
(1996) (Conf. Rep.).
Because it recognized that state and local governments
often have legitimate aesthetic reasons for accepting some
deployments and rejecting others, Congress preempted only
regulations that “unreasonably discriminate” among
providers. 47 U.S.C. § 332(c)(7)(B)(i)(I). Because there
were differences among providers, those who crafted Section
332(c) sought to preserve state and local governments’
“flexibility to treat facilities that create different . . . aesthetic
. . . concerns differently, . . . even if those facilities provide
functionally equivalent services.” S. Rep. No. 104-230, at
209 (1996) (Conf. Rep.).
CITY OF PORTLAND V. UNITED STATES 47
The provisions of the Small Cell Order dealing with
aesthetics are among the most problematic. The Order says,
“aesthetics requirements are not preempted if they are (1)
reasonable, (2) no more burdensome than those applied to
other types of infrastructure deployments, and (3) objective
and published in advance.” Small Cell Order ¶ 86.
In the Small Cell Order, the FCC does not use Section
332’s unreasonable discrimination standard in describing the
limits on local regulation of small cell infrastructure. The
Small Cell Order says instead that small cell aesthetic
requirements must be “no more burdensome” than those
imposed on other providers. Id. For example, the FCC
explained that its standard would prohibit a requirement that
small cell carriers “paint small cell cabinets a particular color
when like requirements were not imposed on similar
equipment placed in the [right-of-way] by electric
incumbents, competitive telephone companies, or cable
companies.” Id. ¶ 84 n.241.
Local Government Petitioners point out that the FCC’s
standard amounts to requiring similar treatment and does not
take into account the differences among technologies. The
FCC’s own justification for its provision bears this out. The
FCC asserts that any application of different aesthetic
standards to 5G small cells necessarily “evidences that the
requirements are not, in fact, reasonable and directed at
remedying the impact of the wireless infrastructure
deployment.” Id. ¶ 87. Thus, in the FCC’s view, when a
state or local government imposes different aesthetic
requirements on 5G technology, those requirements are
pretextual, unrelated to legitimate aesthetic goals, and must
be preempted.
48 CITY OF PORTLAND V. UNITED STATES
Yet the statute expressly permits some difference in the
treatment of different providers, so long as the treatment is
reasonable. Indeed, we have previously recognized that
Section 332(c)(7)(B)(i)(I) of the Telecommunications Act
“explicitly contemplates that some discrimination among
providers . . . is allowed.” MetroPCS, Inc. v. City & Cty. of
S.F., 400 F.3d 715, 727 (9th Cir. 2005) (internal quotation
marks omitted), abrogated on other grounds by T-Mobile S.,
LLC v. City of Roswell, 574 U.S. 293 (2015). We explained
that to establish unreasonable discrimination, providers “must
show that they have been treated differently from other
providers whose facilities are similarly situated in terms of
the structure, placement or cumulative impact as the facilities
in question.” Id. (citation and internal quotation marks
omitted). We explained that this “similarly-situated”
standard is derived from the text of Section 332, and
“strike[s] an appropriate balance between Congress’s twin
goals of promoting robust competition and preserving local
zoning authority.” Id. at 728.
The FCC’s regulation here departs from the carefully
crafted balance found in Section 332 in at least two critical
respects. Unlike Section 332, the regulation does not permit
even reasonable regulatory distinctions among functionally
equivalent, but physically different services. Under this
Order, any local regulation of 5G technology that creates
additional costs is necessarily preempted. The FCC’s
limitation on local zoning authority differs from Section 332
in another respect. The Order requires the comparison of the
challenged aesthetic regulation of 5G deployments to the
regulation of any other infrastructure deployments, while the
statute only requires a comparison with the regulation of
functionally equivalent infrastructure deployments. Small
Cell Order ¶ 87. The prohibition on local regulatory
CITY OF PORTLAND V. UNITED STATES 49
authority in the regulation is in that respect broader than that
contemplated by Congress.
The Supreme Court has told us that “an agency may not
rewrite clear statutory terms” and that this is a “core
administrative-law principle.” Util. Air Regulatory Grp. v.
EPA, 573 U.S. 302, 328 (2014). The FCC has contravened
this principle here by placing a limitation on local zoning
authority that departs from the explicit directive of Congress
in Section 332.
Congress prohibited unreasonable discrimination, but
permitted state and local governments to differentiate in the
regulation of functionally equivalent providers with very
different physical infrastructure. Members of Congress, in
writing Section 332, recognized that applying different
standards for physically different infrastructure deployments
may, in some situations, be a reasonable use of local zoning
authority. See S. Rep. No. 104-230, at 208 (1996) (Conf.
Rep.) (“For example, the conferees do not intend that if a
state or local government grants a permit in a commercial
district, it must also grant a permit for a competitor’s 50-foot
tower in a residential district.”). Requirements imposed on
5G technology are not always preempted as unrelated to
legitimate aesthetic concerns just because they are “more
burdensome” than regulations imposed on functionally
equivalent services. We therefore conclude that the
requirement in Paragraph 86 of the Small Cell Order, that
limitations on small cells be “no more burdensome” than
those applied to other technologies, must be vacated.
The other problematic limitation in the Small Cell Order
is that locally-imposed aesthetic requirements be “objective
and published in advance.” Small Cell Order ¶ 86. The
50 CITY OF PORTLAND V. UNITED STATES
Order defines “objective” to mean the local regulation “must
incorporate clearly-defined and ascertainable standards,
applied in a principled manner.” Id. ¶ 88.
The FCC explained that it adopted this requirement in
response to wireless service providers’ complaints that they
were being kept in the dark about what requirements they had
to meet, and that those requirements were often so subjective
that they had no readily ascertainable meaning. As the Order
explained, the providers complained that they are unable to
“design or implement rational plans for deploying Small
Wireless Facilities if they cannot predict in advance what
aesthetic requirements they will be obligated to satisfy to
obtain permission to deploy a facility at any given site.” Id.The FCC responded by requiring aesthetic regulations to be
“objective and published in advance.” Id. ¶ 86. The
condition of advance publication is not seriously challenged,
but the requirement that all local aesthetic regulation be
“objective” gives rise to serious concerns.
Although the FCC was apparently responding to
complaints of vague standards, Local Government Petitioners
point out that the provision the FCC adopted bars any
regulation other than one related to color, size, shape, and
placement. It targets for preemption regulations focused on
legitimate local objectives, such as ordinances requiring
installations to conform to the character of the neighborhood.
We do not see how all such regulations, designed like
traditional zoning regulations to preserve characteristics of
particular neighborhoods, materially inhibit, materially limit,
or effectively prohibit the deployment of 5G technology.
We have previously expressed considerable doubt about
the view that “malleable and open-ended,” aesthetic criteria
CITY OF PORTLAND V. UNITED STATES 51
per se prohibit service. Sprint, 543 F.3d at 580. In Sprint, we
recognized that “[a] certain level of discretion is involved in
evaluating any application for a zoning permit,” and that
while “[i]t is certainly true that a zoning board could exercise
its discretion to effectively prohibit” service, “it is equally
true (and more likely) that a zoning board would exercise its
discretion only to balance the competing goals of an
ordinance,” including “valid public goals such as safety and
aesthetics.” Id.The FCC’s position that all subjective aesthetic
regulations constitute a per se material inhibition must
therefore be viewed with considerable skepticism. Its
justification for this limitation is that all subjective aesthetic
requirements “substantially increase providers’ costs without
providing any public benefit or addressing any public harm.”
Small Cell Order ¶ 88. This conclusion, that all subjective
standards are without public benefit and address no public
harm, is unexplained and unexplainable.
The FCC says that its objectivity requirement is “feasible”
because some states have adopted laws that prevent cities
from applying subjective aesthetic requirements. See id.nn.246–47. As the FCC itself recognizes in its brief, aesthetic
regulation of small cells should be directed to preventing the
“intangible public harm of unsightly or out-of-character
deployments.” Such harm is, at least to some extent,
necessarily subjective. The fact that certain states have
prohibited municipalities from enacting subjective aesthetic
standards does not demonstrate that such standards never
serve a public purpose. We conclude that the FCC’s
requirement that all aesthetic regulations be “objective” is
arbitrary and capricious. At the very least, the agency must
explain the harm that it is addressing, and the extent to which
52 CITY OF PORTLAND V. UNITED STATES
it intends to limit regulations meant to serve traditional
zoning objectives of preventing deployments that are
unsightly or out of neighborhood character.
The only remaining argument of Local Government
Petitioners with which we must deal is a challenge to the
FCC’s requirement that aesthetic regulations be “reasonable.”
Petitioners contend that it is unduly vague and overbroad.
We read this requirement as the FCC does, however, and
conclude that it should be upheld. The FCC explains that the
reasonableness requirement results in preemption only if
aesthetic regulations are not “technically feasible and
reasonably directed” at remedying aesthetic harms. Id. ¶ 87.
We recognized in Sprint that imposing an aesthetic
requirement that is not technically feasible would constitute
an effective prohibition of service under the Act. 543 F.3d at
580. The FCC’s justification for adopting this rule is
therefore consistent with our case law, as well as
congressional intent in enacting Sections 253 and 332, and is
not unduly vague or overbroad.
In sum, the requirement that aesthetic regulations be “no
more burdensome” than those imposed on other technologies
is not consistent with the more lenient statutory standard that
regulations not “unreasonably discriminate.” The
requirement that local aesthetic regulations be “objective” is
neither adequately defined nor its purpose adequately
explained. On its face, it preempts too broadly. We therefore
hold those provisions of Paragraph 86 of the Small Cell Order
must be vacated.
CITY OF PORTLAND V. UNITED STATES 53
3. Shot Clocks
Since 2009, the FCC has set time limits, known as shot
clocks, for local authorities to act on applications to deploy
wireless facilities. In the Small Cell Order, the FCC made
two major changes from the shot clocks provisions in the
2009 Order. It expanded the application of shot clock timing
requirements from zoning applications to include all
permitting decisions. It shortened the shot clock time. State
and local governments now have sixty days to decide
applications for installation on existing infrastructure, and
ninety days for all other applications. Small Cell Order
¶¶ 104–05, ¶ 132, ¶ 136. The previous shot clocks were
ninety days and 150 days respectively. Id. ¶ 104.
To remedy a violation of the 2009 requirements, the
applicant had to seek an injunction. During this rulemaking,
providers urged the FCC to adopt a “deemed granted”
remedy, i.e. where, at the expiration of a shot clock, a permit
would be “deemed granted” and the city would have to file a
lawsuit to prevent the wireless service provider from
beginning construction. The FCC ultimately did not change
the remedy, so under the Small Cell Order, when a state or
local government misses a shot clock deadline for deciding an
application, the applicant must still seek injunctive relief.
Wireless Service Provider Petitioners (Sprint et al.) now
challenge the FCC’s refusal to adopt a deemed granted
remedy for shot clock violations.
Local Government Petitioners are unhappy with the
shortened time limits for decisions on applications, and with
the expansion of shot clocks beyond zoning applications to all
applications for deployment of wireless services. We
consider their challenges first.
54 CITY OF PORTLAND V. UNITED STATES
Local Government Petitioners attack the shortened shot
clock time frames, contending they arbitrarily restrict
municipalities’ ability to conduct traditional zoning review
that may take longer than the prescribed shot clock
requirements. Petitioners criticize the FCC’s reliance on a
limited survey of state and local laws, contending that those
laws had unusual, shorter time frame requirements.
Petitioners contend that most state and local governments will
be unable to decide permits within the time limits prescribed
under the Small Cell Order.
The FCC’s reliance on the survey of local laws and
practices was reasonable, however, because it served only a
limited purpose. The FCC used the survey only to support its
unremarkable assertion that some municipalities “can
complete reviews more quickly than was the case when the
existing Section 332 shot clocks were adopted” in 2009.
Small Cell Order ¶ 106. It must be remembered that the shot
clock requirements create only presumptions. As under the
2009 Order, if permit applicants seek an injunction to force
a faster decision, local officials can show that additional time
is necessary under the circumstances. Id. ¶ 137; see id. ¶ 109,
¶ 127; see also City of Arlington, 668 F.3d at 259–61
(upholding previous FCC shot-clock presumptions).
The Telecommunications Act itself supports the
expansion of shot clocks to all permitting decisions. Section
332(c)(7)(B)(ii) requires a decision to be made within a
“reasonable period of time,” and applies both to applications
“to place” wireless facilities as well as requests to “construct,
or modify” such facilities. 47 U.S.C. § 332(c)(7)(B)(ii).
Together, these enumerations of the categories of applications
can reasonably be interpreted to authorize the application of
CITY OF PORTLAND V. UNITED STATES 55
shot clocks to building and construction permits, as well as
zoning permits.
The FCC also provided sound reasons for this expansion.
It explained that limiting shot clocks to zoning permits could
lead states and localities to “delay their consideration of other
permits (e.g., building, electric, road closure or other permits)
to thwart the proposed deployment.” Small Cell Order ¶ 134
n.390. Courts interpreting Section 332 have reached a similar
conclusion for the same reason. See, e.g., Ogden Fire Co.
No. 1 v. Upper Chichester Twp., 504 F.3d 370, 395–96 (3d
Cir. 2007) (rejecting the argument that the Act only applies
to zoning permits, because the city could use other permits to
delay construction of telecommunications infrastructure).
The FCC acted well within its authority, and in accordance
with the purpose of the Act, when it broadened the
application of the shot clocks to encompass all permits, in
order to prevent unreasonable delays.
For their part, Wireless Service Provider Petitioners
contend that the FCC did not go far enough in modifying the
shot clock requirements. Petitioners contend that the FCC
should have adopted a deemed granted remedy for shot clock
violations, and argue that the Small Cell Order’s factual
findings compel the adoption of such a remedy.
This argument relies on a mischaracterization of the
FCC’s factual findings. It is true that the FCC found that
delays under the old shot clock regime were so serious they
would “virtually bar providers from deploying wireless
facilities.” Small Cell Order ¶ 126. But the FCC concluded
that under its new shot clock rules, which shorten the time
frames and expand the applicability of the rules, there will be
no similar bar to wireless deployment. Id. ¶ 129. Because
56 CITY OF PORTLAND V. UNITED STATES
the FCC reasonably explained it has taken measures to reduce
delays that would otherwise have occurred under its old
regime, the factual findings here do not compel the adoption
of a deemed granted remedy.
Wireless Service Providers next argue that the failure to
adopt a deemed granted remedy is arbitrary and capricious
because the FCC adopted the remedy in a different statutory
context, the Spectrum Act, see 47 U.S.C. §§ 1451–57, and
never explained why it did not do so here. It is
understandable that the FCC gave no explanation of the
difference because no comments raised any such disparity
during the regulatory process. See Perez v. Mortg. Bankers
Ass’n, 575 U.S. 92, 96 (2015) (explaining that an agency has
an obligation to respond to significant comments received).
There are critical differences between the language of the
Telecommunications Act and the language of the Spectrum
Act. The Telecommunications Act requires cities make a
decision on applications within a reasonable period of time.
See 47 U.S.C. § 332(c)(7)(B)(ii) (“A State or local
government or instrumentality thereof shall act on any
request for authorization to place, construct, or modify
personal wireless service facilities within a reasonable period
of time . . . .” (emphasis added)). The Spectrum Act provides
that the local government must grant all qualifying
applications. 47 U.S.C. § 1455(a)(1) (“[A] State or local
government may not deny, and shall approve, any eligible
facilities request for a modification of an existing wireless
tower or base station . . . .” (emphasis added)). The deemed
granted remedy in the FCC’s Spectrum Act order was in
accordance with the text of the statute. There is no similar
language in the Telecommunications Act. The FCC’s
conclusion that a different remedy was appropriate here was
therefore not arbitrary and capricious.
CITY OF PORTLAND V. UNITED STATES 57
4. Regulation of Property in the Public Rights of
Way
Local governments generally exercise control over public
rights-of-way for purposes of determining where installations
such as utility poles and traffic lights should be placed. Some
of these installations are owned by the municipalities
themselves and some are owned by other entities, such as
public and private utilities. Local Government and Public
Power Petitioners (American Public Power Association et al.)
argue that under Supreme Court authority, the preemption
provision of Section 253(a) cannot apply to the municipal
regulation of access to municipally-owned installations.
The Supreme Court has considered whether a provision
of the National Labor Relations Act that preempts local
regulation of labor relations prevented a municipality that
was running a construction project from enforcing an
otherwise valid collective bargaining agreement. Bldg. &
Constr. Trades Council of Metro. Dist. v. Associated Builders
& Contractors of Mass./R.I. Inc., 507 U.S. 218, 231–32
(1993). The Court explained that when a municipality is
acting like a private business, and not acting as a regulator or
policymaker, there can be no preemption by the NLRA
because the municipality was not engaged in regulation of
labor relations. Id. It was acting as a property owner.
Local Government Petitioners and Public Power
Petitioners here contend that the municipalities are acting like
private property owners in controlling access to, and
construction of, facilities in public rights-of-way and that the
Act’s preemption provision therefore does not apply. They
thus contend the FCC lacks authority to regulate the fees they
charge for access to the rights-of-way and to the property on
58 CITY OF PORTLAND V. UNITED STATES
the rights-of-way. They emphasize that the provisions of the
Small Cell Order are intended to preempt not only regulation
of installations owned by non-municipal entities but also
regulation of installations owned by the municipalities
themselves.
The issue thus becomes whether the FCC reasonably
concluded that local jurisdictions are acting like private
property owners when the jurisdictions charge fees or
otherwise control the access to public rights-of-way. The
FCC’s regulations in the Small Cell Order were premised on
the agency’s determination that municipalities, in controlling
access to rights-of-way, are not acting as owners of the
property; their actions are regulatory, not propriety, and
therefore subject to preemption. Small Cell Order ¶ 96. This
is a reasonable conclusion based on the record. The rights-of-
way, and manner in which the municipalities exercise control
over them, serve a public purpose, and they are regulated in
the public interest, not in the financial interests of the cities.
As the FCC explained, the cities act in a regulatory capacity
when they restrict access to the public rights-of-way because
they are acting to fulfill regulatory objectives, such as
maintaining aesthetic standards. Id.This conclusion is supported by case law in this Circuit,
where we have held that cities operate in a regulatory
capacity when they manage access to public rights-of-way
and public property thereon. See Olympic Pipe Line Co. v.
City of Seattle, 437 F.3d 872, 881 (9th Cir. 2006). For
example, in Olympic Pipe Line, we concluded that the City of
Seattle operated in a regulatory capacity when it made certain
demands of an oil pipeline that operated under city-owned
streets in the public rights-of-way. Id.; see also Shell Oil Co.
v. City of Santa Monica, 830 F.2d 1052, 1057–58 (9th Cir.
CITY OF PORTLAND V. UNITED STATES 59
1987) (holding that the City of Santa Monica does not act as
a market participant when it sets franchise fees for pipelines
that run under its streets).
The FCC’s conclusions here about the Order’s scope are
reasonably explained, and do not violate any presumption
against preemption of proprietary municipal conduct.
Municipalities do not regulate rights-of-way in a proprietary
capacity.
5. Section 224
The FCC adopted the Small Cell Order to remove barriers
that would prevent 5G providers from accessing existing
facilities for installation of small cells. These existing
facilities often include utility poles. Public Power Petitioners,
representing the interests of public power utilities, contend
the Order cannot affect poles owned by public utilities,
because Section 224 of the Telecommunications Act, relating
to regulation of utility pole attachment rates, contains an
express exclusion for government-owned utilities. See
47 U.S.C. § 224(a)(1).
The Small Cell Order is not a regulation of rates pursuant
to Section 224, however. It is promulgated under the
authority of Section 253 to ensure that state and local statutes
do not have a prohibitory effect on telecommunications
services. See 47 U.S.C. § 253(a); The FCC responded
appropriately when it said, “[n]othing in Section 253 suggests
such a limited reading, nor does Section 224 indicate that
other provisions of the Act do not apply. We conclude that
our interpretation of effective prohibition extends to fees for
all government-owned property in the [right-of-way],
including utility poles.” See Small Cell Order ¶ 92 n.253.
60 CITY OF PORTLAND V. UNITED STATES
Because Section 253 does not exempt public power utilities
from its terms, the FCC reasonably relied on Section 253 to
regulate such utilities.
6. Radiofrequency Exposure
More than twenty years ago, the FCC first adopted
“radiofrequency standards,” (RF standards) which limit the
amount of radiation that can be emitted from wireless
transmitters. Guidelines for Evaluating the Envtl. Effects of
Radiofrequency Radiation, 11 FCC Rcd. 15,123 (1996). The
FCC is obligated to evaluate the potential impacts of human
exposure to radiofrequency emissions under the National
Environmental Policy Act. See Pub. L. 104-104, 110 Stat. 56(1996); 47 C.F.R. § 1.1310. In the Telecommunications
Act, Congress preempted all municipal regulation of
radiofrequency emissions to the extent that such facilities
comply with federal emissions standards. 47 U.S.C.
§ 332(c)(7)(B)(iv).
In 2013, the FCC opened a “Notice of Inquiry,”
requesting comments on whether it should reassess its RF
standards. See Reassessment of Fed. Commc’ncs Comm’n
Radiofrequency Exposure Limits and Policies, 28 FCC Rcd.
3498 (2013). The agency did not take immediate action on
that docket. During the later process leading up to the
adoption of the Small Cell Order, Petitioner Montgomery
County requested that the Commission complete its 2013 RF
proceeding before adopting the Small Cell Order, and that it
examine the potential effects of 5G technology on its RF
standards. The FCC did not address its RF standards or close
the 2013 docket before adopting the Small Cell Order.
CITY OF PORTLAND V. UNITED STATES 61
Petitioner Montgomery County now challenges the FCC’s
Small Cell Order as unlawful because the FCC did not
complete the 2013 docket review before adopting the Small
Cell Order. After its petition was filed, however, the FCC
adopted a new order examining radiofrequency exposure in
the 5G environment, and concluded that it did not warrant
changes to its 1996 standards. Challenges to the FCC’s
failure to perform updated radiofrequency analysis, as
contemplated by the 2013 docket, are therefore moot. See,
e.g., Alliance for the Wild Rockies v. U.S. Dep’t of Agr.,
772 F.3d 592, 601 (9th Cir. 2014).
There is no merit to Montgomery County’s further
suggestion that we should penalize the FCC for what the
County calls evasive litigation tactics in not acting earlier.
The Supreme Court has emphasized that agencies have
“significant latitude as to the manner, timing, content, and
coordination of [their] regulations.” Massachusetts v. EPA,
549 U.S. 497, 533 (2007); see also Mobil Oil Expl. &
Producing Se. Inc. v. United Distrib. Cos., 498 U.S. 211,
230–31 (1991) (“An agency enjoys broad discretion in
determining how best to handle related, yet discrete, issues in
terms of procedures and priorities. . . . [A]n agency need not
solve every problem before it in the same proceeding.”
(citations omitted)). More important, Montgomery County
now has what it wanted; the FCC has examined the effects of
5G technology on its RF standards, and closed the 2013
docket. Any challenges to the adequacy of that final agency
action must now be brought in a new proceeding.
B. Challenges to the Moratoria Order
The FCC adopted the Moratoria Order in response to
complaints from a “broad array of large and small . . .
62 CITY OF PORTLAND V. UNITED STATES
wireless providers” that state and local ordinances and
practices were either explicitly or having the effect of barring
small cell deployment. Moratoria Order ¶ 143. In the Order,
the FCC concluded that ordinances and practices were
materially inhibiting small cell deployment, and the agency
provided general standards to differentiate between
permissible municipal regulations and impermissible
“moratoria.” The Moratoria Order describes two general
categories of moratoria: express and de facto. See id. ¶ 144.
It defined express moratoria as “statutes, regulations, or other
written legal requirements” in which state or local
governments “expressly . . . prevent or suspend the
acceptance, processing, or approval of applications or permits
necessary for deploying telecommunications services.” Id.
¶ 145. The Order provided such bars to 5G deployment
qualify as moratoria even though they are of a limited
duration. Id.
The FCC then defined de facto moratoria as “state or local
actions that are not express moratoria, but that effectively halt
or suspend the acceptance, processing, or approval of
applications or permits for telecommunications services or
facilities in a manner akin to an express moratorium.” Id.
¶ 149. De facto moratoria violate Section 253 only when they
unreasonably or indefinitely delay deployment. Id. ¶ 150.
The Order provides a new definition of Section 253(b)’s
exemption for local regulations that protect “the public safety
and welfare.” The Order permits what it describes as
“emergency” bans on the construction of 5G facilities to
protect public safety and welfare, but only where those laws
are (1) “competitively neutral”, (2) necessary to address the
emergency, disaster, or related public needs, and (3) target
CITY OF PORTLAND V. UNITED STATES 63
only those geographic areas affected by the disaster or
emergency. Id. ¶ 157.
The City of Portland, not joined by the other Local
Government Petitioners, challenges the Order with a handful
of criticisms. The City’s primary contention is that the
Order’s definitions of moratoria are overly broad, and
therefore unreasonable, because, in the City’s view, the
Moratoria Order preempts even benign seasonal restrictions
on construction, such as freeze-and-frost laws. The City also
contends that the Moratoria Order is an invalid application of
Section 253, and self-contradictory in its definitions. None
of these contentions have merit.
As an initial matter, we do not read the Moratoria Order
as broadly as the City does in arguing that it would preempt
all restrictions on construction, even seasonal ones that cause
some delay in small cell deployment. The FCC carefully
explained in the Order that municipal ordinances of general
applicability will qualify as de facto moratoria only where
the delay caused by the ordinances “continues for an
unreasonably long or indefinite amount of time such that
providers are discouraged from filing applications.” Id.
¶ 150. Municipal regulations on construction are therefore
not preempted if they “simply entail some delay in
deployment.” Id. The explanation is supported by the FCC’s
assurance in the Order that municipalities retain authority
over “construction schedul[ing].” Id. ¶ 160. The City’s
concerns about the breadth of the Moratoria Order are
therefore unfounded. The Order does not preempt necessary
and customary restrictions on construction.
The City argues that the Moratoria Order preempts laws
of general applicability, while Section 253 preempts only
64 CITY OF PORTLAND V. UNITED STATES
those that specifically target the provision of
telecommunications services. By its terms, however, Section
253(a) is not so limited. It looks to both the language and
impact of local regulations. It preempts all “local statute[s]
or regulation[s], or other . . . legal requirement[s]” that
prohibit or have the effect of prohibiting telecommunications
services. 47 U.S.C. § 253(a).
Nor is the Moratoria Order contradictory in its definitions
of express and de facto prohibitions. After examining the
factual record, the FCC found that some localities had
repeatedly re-authorized temporary bans on 5G installation to
prohibit the installation of 5G cells indefinitely. Moratoria
Order ¶ 148 n.546. The FCC therefore clarified that such
explicit bans on 5G deployment qualify as express moratoria,
even if they have a “limited, defined duration.” Id. ¶ 148. In
a separate paragraph dealing with de facto prohibitions
resulting from more general laws, the FCC explained that
generally applicable laws, i.e. those that do not facially target
small cells, are not preempted unless they cause a delay that
“continues for an unreasonably long or indefinite amount of
time.” Id. ¶ 150. There is nothing inconsistent or
unexplained in the FCC’s separate definitions of express and
de facto moratoria.
Finally, the City challenges the FCC’s purportedly narrow
construction of Section 253(b)’s preemption exception for
laws regulating safety and welfare. The FCC reasonably
interpreted the phrase “public safety and welfare” in this
context to permit emergency bans on 5G deployment where
the regulations are competitively neutral and intended to
remedy an ongoing public safety concern. The FCC
explained such an interpretation was necessary to prevent the
pretextual use of safety “as a guise for” preventing
CITY OF PORTLAND V. UNITED STATES 65
deployment. Id. ¶ 157. The Order is consistent with the
FCC’s earlier interpretations of Section 253(b). See, e.g.,
New Eng. Pub. Commc’ns Council Petition for Preemption,
11 FCC Rcd. 19,713 (1996) (rejecting a broad interpretation
of Section 253(b)).
The Moratoria Order is not arbitrary, capricious, or
contrary to law on a facial basis. As the FCC has recognized,
objections to specific applications of the Moratoria Order
may be made on a case-by-case basis.
C. Constitutional Challenges to Both Orders
Local Government Petitioners also argue that the Small
Cell and Moratoria Orders violate the Fifth and Tenth
Amendments. First, Petitioners argue that the Small Cell
Order is a physical taking in violation of the Fifth
Amendment because it requires municipalities to grant
providers access to municipal property, including rights-of-
way, thereby creating a physical taking without just
compensation. Petitioners compare the Small Cell Order to
the New York state law at issue in Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 421 (1982), which
required landlords to permit cable television companies to
install cables on their property. In Loretto, the Court held the
law to be a physical taking because the installation resulted in
“permanent occupations of land.” Id. at 430. Here, on the
other hand, the Small Cell Order precludes state and local
governments from charging unreasonable fees when granting
applications, and it continues to allow municipalities to deny
access to property for a number of reasons. See Small Cell
Order ¶ 73 n.217. It does not compel access to property in a
manner akin to Loretto. See id. Once again, challenges to
66 CITY OF PORTLAND V. UNITED STATES
particular applications of the Small Cell Order must be made
on an as-applied basis.
Petitioners also argue that the Small Cell Order
constitutes a regulatory taking by limiting cost recovery. The
Supreme Court rejected a similar argument in FCC v. Florida
Power Corp., 480 U.S. 245 (1987), holding that limiting cost
recovery to actual costs did not result in a regulatory taking.
Id. at 254. Because the Small Cell Order allows for the
recovery of actual costs as well, the Order does not constitute
a regulatory taking. See Small Cell Order ¶ 50 (explaining
that the Small Cell Order continues to allow for fees that “are
a reasonable approximation of the state or local government’s
costs”).
Finally, Local Government Petitioners argue that, by
requiring municipalities to respond to applications for use
from 5G and broadband installers within a prescribed period
of time or risk immediate control of its property, the Small
Cell and Moratoria Orders compel Petitioners to enforce
federal law in violation of the Tenth Amendment. In support,
they cite National Federation of Independent Businesses v.
Sebelius, 567 U.S. 519, 579–80 (2012) (plurality opinion),
where the Court held that financial inducement had the effect
of compelling states to enforce a federal program. Nothing
like that is happening here. Instead, the FCC is interpreting
and enforcing the 1996 Telecommunications Act, adopted by
Congress pursuant to its delegated authority under the
Commerce Clause, to ensure that municipalities are not
charging small cell providers unreasonable fees. “If a power
is delegated to Congress in the Constitution, the Tenth
Amendment expressly disclaims any reservation of that
power to the States.” New York v. United States, 505 U.S.
144, 156 (1992). In addition, by preempting certain State
CITY OF PORTLAND V. UNITED STATES 67
and local policies, the FCC did not commandeer State and
local officials in violation of the Tenth Amendment.
Although their “language might appear to operate directly
on the States,” the Orders—as applications of the
Telecommunications Act—simply “confer[] on private
entities . . . a federal right to engage in certain conduct subject
only to certain (federal) constraints.” See Murphy v. Nat’l
Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1480 (2018)
(citing Morales v. Trans World Airlines, Inc., 504 U.S. 374,
378 (1992)). The Orders do not violate the Constitution.
IV. ONE-TOUCH MAKE-READY ORDER
In adopting the One-Touch Make-Ready Order, the FCC
intended to make it faster and cheaper for broadband
providers to attach to already-existing utility poles. See
Accelerating Wireline Broadband Deployment by Removing
Barriers to Infrastructure Inv., 33 FCC Rcd. 7705, ¶ 1 (2018)
[hereinafter One-Touch Make-Ready Order]. Previously,
only the pole owners could perform the preparatory work
necessary for attachment. The main purpose of the Order is
to create a new process, called one-touch make-ready, that
allows new attachers themselves to do all the preparations.
Id. ¶ 2.
Petitioners American Electric Power Service Corporation
et al., a group of private utility companies, do not challenge
the most important aspects of the One-Touch Make-Ready
Order. Instead, they challenge four secondary aspects of the
Order: rules for overlashing, preexisting violations, self-help,
and rate reform. For the following reasons, we uphold them
all.
68 CITY OF PORTLAND V. UNITED STATES
A. Overlashing
Overlashing is the process by which attachers affix
additional cables or other wires to ones already attached to a
pole. The overlashing rule prohibits a utility from requiring
overlashers to conduct pre-overlashing engineering studies or
to pay the utility’s cost of conducting such studies. Id. ¶ 119
n.444.
Petitioner utility companies first contend the overlashing
rule contradicts the text of Section 224(f)(2), because the rule
does not expressly say that a utility can exercise its statutory
authority to deny access to poles for safety, capacity,
reliability, or engineering reasons. See 47 U.S.C. § 224(f)(2).
But the overlashing rule does not prevent utilities from
exercising their statutory rights, nor has the FCC interpreted
the overlashing rule to do so. It is speculative to suggest that
it might do so in the future. See Texas v. United States,
523 U.S. 296, 300 (1998) (declining to consider claim
because “it rests upon contingent future events that may not
occur as anticipated, or indeed may not occur at all.” (internal
quotation marks omitted)). The rule allows overlashers and
utilities to negotiate the details of the overlashing
arrangement, and is thus consistent with FCC’s longstanding
policy. See Amendment of Comm’n’s Rules & Policies
Governing Pole Attachments, 16 FCC Rcd. 12,103, ¶ 74
(2001).
Petitioners also argue that the overlashing rule
undermines a utility’s Section 224(f)(2) authority to deny
pole access, because it prevents utilities from requiring
overlashers to provide certain information. We conclude that
the overlashing rule does not impede a utility’s exercise of its
statutory authority to deny access to poles. The rule
CITY OF PORTLAND V. UNITED STATES 69
authorizes utilities to require that overlashers give fifteen
days’ notice to utilities prior to overlashing so that safety
concerns can be addressed. One-Touch Make-Ready Order
¶¶ 115–16. The record shows that such notice provisions
were frequently negotiated in the past on a voluntary basis
and supports the FCC’s conclusion that such “an advance
notice requirement has been sufficient to address safety and
reliability concerns.” Id. ¶ 117. Indeed, in evaluating similar
rules, the D.C. Circuit has already held that there is “no
merit” to the claim that utilities cannot effectively exercise
their rights under Section 224(f)(2) without “prior notice” of
overlashing. See S. Co. Servs., Inc. v. FCC, 313 F.3d 574,
582 (D.C. Cir. 2002).
Finally, Petitioners argue that by prohibiting the utilities
from charging overlashers for the cost of conducting pre-
overlashing studies, the overlashing rule contradicts Section
224(d)(1). That section ensures cost recovery, but it does so
only for attachments by cable television providers. See
47 U.S.C. § 224(d)(1)–(3). It does not apply here. The
overlashing rule is thus a reasonable attempt by the FCC to
prevent unnecessary costs for attachers.
B. Preexisting Violation Rule
The preexisting violation rule prohibits utilities from
denying access to a new attacher solely because of a
preexisting safety violation that the attacher did not cause.
One-Touch Make-Ready Order ¶ 122. Petitioners contend
that this is contrary to Section 224(f)(2), which allows
utilities to deny access for “reasons of safety.” There is no
conflict.
70 CITY OF PORTLAND V. UNITED STATES
The rule defines the term “reasons of safety” as
preventing a utility from denying access to a new attacher
because of a safety hazard created by a third party. Id. ¶ 122.
Such denials have the effect of forcing an innocent would-be
attacher to fix the violation. This rule prevents the utilities
from passing the costs off on entities that did not cause the
safety problem in the first place. The FCC confirmed at oral
argument that the preexisting violation rule would not prevent
utilities from rejecting proposed attachments that increase
safety risks on a utility pole. The rule thus operates to prevent
utilities from relying on preexisting violations pretextually to
deny pole access to attachments that pose no greater safety
risk than existing attachments. Because the preexisting
violation rule reasonably defines the term “reasons of safety,”
the FCC’s interpretation is reasonable.
C. Self-Help Rule
Prior to the One-Touch Make-Ready Order, attachers
could hire contractors to perform preparatory work only on
the lower portion of a pole. The self-help rule lets the utility-
approved contractors prepare the entire pole for attachment.
Id. ¶¶ 97–99. Petitioners argue that this expansion is contrary
to Section 224(f)(2) because permitting attachers to hire
contractors to work on the upper portion of poles jeopardizes
safety. Yet, the rule has a number of provisions designed to
mitigate any increased safety risks. For example, the rule
gives a utility a ninety-day window to complete the pre-
attachment work itself (thereby circumventing the rule’s
contractor provisions entirely). Id. ¶ 99. The rule also
requires new attachers to use a utility-approved contractor to
perform the self-help work, and it requires the attacher to give
the utility advanced notice of when the self-help work will
CITY OF PORTLAND V. UNITED STATES 71
occur so that the utility can be present if it wishes. Id.¶¶ 99–106.
The rule represents a change from earlier rules on what
self-help measures an attacher could perform, and the FCC
explained that use of approved contractors would improve
efficiency. Id. ¶ 97. A complaint process in the old self-help
rule allowed new attachers to file complaints when a utility
was not preparing the pole in a timely fashion. This did not
encourage efficiency. It was an “insufficient tool for
encouraging [a utility’s] compliance with [the FCC’s]
deadlines.” Id. ¶ 98. The FCC reasonably views the
deployment of new 5G technology to be a matter of “national
importance,” justifying extension of the self-help rule to
promote timely installations. Id. ¶ 97. The self-help rule is
thus not arbitrary or capricious.
Petitioners also argue that the FCC lacks authority to
regulate utility-owned pole attachments, since Section 224
defines “pole attachments” to include attachments to a utility-
owned or -controlled pole. But the FCC has authority to
promulgate “regulations to carry out the provisions of”
Section 224, 47 U.S.C. § 224(b)(2), which includes
regulations addressing “nondiscriminatory access” to utility
poles, id. § 224(f)(1). It was reasonable for the FCC to
conclude that it could not ensure nondiscriminatory access to
poles without allowing make-ready work that would
reposition utility attachments; otherwise, utilities could
simply deny access to attachers based on pretextual reasons
of insufficient capacity. See S. Co. v. FCC, 293 F.3d 1338,
1348 (11th Cir. 2002) (“[T]he FCC must have some way of
assessing whether these needs are bona fide; otherwise, a
utility could arbitrarily reserve space on a pole . . . and
72 CITY OF PORTLAND V. UNITED STATES
proceed to deny attachers space on the basis of ‘insufficient
capacity.’”). Petitioners’ statutory challenge thus fails.
Petitioners mount a procedural challenge to the rule,
arguing that the FCC did not comply with the APA’s notice
requirement, 5 U.S.C. § 553, because it had not issued a
proposed rule before announcing the final self-help rule. In
raising the issue in a single footnote, petitioners have waived
any challenge to the APA’s notice requirement. See Idaho
Conservation League v. Bonneville Power Admin., 826 F.3d
1173, 1178 (9th Cir. 2016). In any event, the FCC’s Notice
of Proposed Rulemaking (NPRM) sought proposals to speed
up access to poles by allowing new attachers to prepare poles
for attachment, and several commenters proposed expanding
an attacher’s ability to perform preparatory work on the entire
pole. We conclude that, at the very least, the self-help rule is
a logical outgrowth of the NPRM. See Rybachek v. EPA,
904 F.2d 1276, 1288 (9th Cir. 1990) (explaining that an
agency need not provide a new NPRM as long as the final
published rule is “a logical outgrowth of the notice and
comments received”). There is no reason to force the agency
to begin the self-help rulemaking process anew.
D. Rate-Reform Rule
The rate reform rule continues regulatory efforts to
remove rate disparities between telecommunications carriers
who historically owned utility poles (so-called incumbent
local exchange carriers, or ILECs) and telecommunications
carriers who do not own utility poles (so-called competitive
local exchange carriers, or CLECs). See Am. Elec. Power
Serv. Corp. v. FCC, 708 F.3d 183, 185–86 (D.C. Cir. 2013).
This rule establishes a presumption that all
telecommunication carriers are similarly situated and thus
CITY OF PORTLAND V. UNITED STATES 73
entitled to the same rates. One-Touch Make-Ready Order
¶ 123. But if a utility successfully rebuts the presumption by
showing that an ILEC continues to retain “net benefits” that
other telecommunications providers do not enjoy, then the
rate reform rule imposes a maximum rate that ILECs and
utilities may negotiate. See id. ¶¶ 128–29.
Section 224(e)(1) authorizes the FCC to prescribe rates
for pole attachments used by CLECs, but not ILECs. See
47 U.S.C. § 224(e)(1); see also id. § 224(a)(5). Petitioners
therefore argue that the FCC lacks the authority to prescribe
the same rates for ILECs. Section 224(b)(1), however,
requires the FCC to set just and reasonable rates for all
telecommunications carriers, and the FCC interpreted that to
include ILECs as well as CLECs. See id. § 224(b)(1). The
FCC has interpreted Section 224(b)(1) this way since 2011,
and the D.C. Circuit upheld this interpretation some years
ago. See Am. Elec. Power Serv. Corp., 708 F.3d at 188. And
the Supreme Court has made clear that Section 224(e)(1)
“work[s] no limitation” on the FCC’s more general
ratemaking authority under Section 224(b)(1), which is the
statutory provision that the agency invoked here. See Nat’l
Cable & Telecomm. Ass’n, Inc. v. Gulf Power Co., 534 U.S.
327, 335–36 (2002).
This rule does, for the first time, set the same presumptive
rates for ILECs and CLECs, and the FCC explained why its
record supported such a rule. See One-Touch Make-Ready
Order ¶ 126. A study by US Telecom showed that earlier
efforts to decrease rate disparities between ILECs and CLECs
had not been successful, and that historic differences between
ILECs and CLECs that supported different rates in the past
are now disappearing. See id. ¶¶ 124–26. The FCC provided
74 CITY OF PORTLAND V. UNITED STATES
an adequate justification for setting the same presumptive
rates for all telecommunications providers.
Finally, Petitioners argue that the rate reform rule may
result in their incomplete recovery of costs, because if a
utility successfully rebuts the presumption that an ILEC
should have the same rates as CLECs, the rule imposes a
maximum rate ILECs and utilities may negotiate. See id.
¶ 129. The maximum negotiable rate is not arbitrary or
capricious, however, because FCC set the rate at a value that
is higher than both CLEC and cable operator rates, and the
FCC had previously determined those rates were just,
reasonable, and allowed full cost recovery. Id. ¶ 129 n.483;
see also Implementation of Section 224 of the Act, 26 FCC
Rcd. 5240, ¶ 183 (2011).
The rate reform rule, like the overlashing, preexisting
violations, and self-help rules, is an appropriate exercise
of the FCC’s regulatory authority under the
Telecommunications Act.
V. CONCLUSION
We therefore hold that the FCC’s requirement in the
Small Cell Order that aesthetic regulations be “no more
burdensome” than regulations applied to other infrastructure
deployment is contrary to the controlling statutory provision.
See 47 U.S.C. § 332(c)(7)(B)(i)(II). We also hold that the
FCC’s requirement that all local aesthetic regulations be
“objective” is not adequately explained and is therefore
arbitrary and capricious. We therefore GRANT the petitions
as to those requirements, VACATE those portions of the rule
and REMAND them to the FCC. The petition of
Montgomery County is DISMISSED as moot. As to all
CITY OF PORTLAND V. UNITED STATES 75
other challenges, the petitions are DENIED. Each party to
bear its own costs.
BRESS, Circuit Judge, dissenting in part:
The majority opinion carefully addresses an array of legal
challenges to a series of FCC Orders designed to accelerate
the deployment of 5G service. I join the court’s fine opinion
except as to Part III.A.1, which upholds the FCC’s decision
to preempt any fees charged to wireless or
telecommunications providers that exceed a locality’s costs
for hosting communications equipment. In my view, the FCC
on this record has not adequately explained how all above-
cost fees amount to an “effective prohibition” on
telecommunications or wireless service under 47 U.S.C.
§§ 253(a) and 332(c)(7)(B)(i)(II).
The Telecommunications Act of 1996 provides that “[n]o
State or local statute or regulation, or other State or local
legal requirement, may prohibit or have the effect of
prohibiting the ability of any entity to provide any interstate
or intrastate telecommunications service.” 47 U.S.C.
§ 253(a). The Act contains a similar provision for wireless
service. See id. § 332(c)(7)(B)(i)(II) (“The regulation of the
placement, construction, and modification of personal
wireless service facilities by any State or local government or
instrumentality thereof . . . shall not prohibit or have the
effect of prohibiting the provision of personal wireless
services.”).
The Act does not define what it means for a local policy
to “have the effect of prohibiting” service. Since 1997,
76 CITY OF PORTLAND V. UNITED STATES
however, the FCC has interpreted the phrase to preempt local
policies that “materially inhibit” the ability of providers “to
compete in a fair and balanced legal and regulatory
environment.” See Small Cell Order ¶ 35 (quoting Cal.
Payphone Ass’n, 12 FCC Rcd. 14191, 14206 (1997)). This
standard does not require a “complete or insurmountable”
barrier to service. Id. But it does require that a local rule
materially inhibit the ability to provide service based upon the
“actual effects” of a state or local ordinance,” “not [ ] what
effects the ordinance might possibly allow.” Sprint
Telephony PCS, L.P. v. Cty. of San Diego, 543 F.3d 571, 578
(9th Cir. 2008) (en banc) (emphasis in original); see also id.(the statute requires an “actual or effective prohibition, rather
than the mere possibility of prohibition”) (quotations
omitted).
In the Small Cell Order, the FCC concluded that state and
local fees materially inhibit telecommunications and wireless
service when they exceed a locality’s reasonable cost of
accommodating communications facilities. Small Cell Order
¶¶ 50, 53. The FCC cited evidence that certain exorbitant
fees have stopped providers from offering service in certain
locales. See, e.g., AT&T Aug. 10, 2018 Ex Parte Letter
(AT&T “has not deployed any small cell sites in Portland,
Oregon” due to the city’s $7,500 attachment fee and recurring
fee of $3,500 to $5,500). The agency also found that “even
fees that might seem small in isolation have material and
prohibitive effects on deployment particularly considered in
the aggregate.” Small Cell Order ¶ 53. This latter finding
was based on the FCC’s determination that reduced fees
generate cost-savings for providers, which enables them to
use the newfound savings to expand wireless and
telecommunications coverage. See id. ¶ 50, 55–56, 64–65 &
nn.194–95. The agency estimated aggregate cost-savings
CITY OF PORTLAND V. UNITED STATES 77
from a reduction in fees to be over $2 billion, relying on a
2018 study by Corning, Inc. Id. ¶¶ 7, 60 & n.169.
The FCC carved out a safe harbor from the Order’s broad
preemption rule for pole construction fees up to $1,000,
attachment fees up to $500 (or $100 after a provider’s first
five 5G facilities), and recurring fees up to $270. Id. ¶ 79.
Fees may exceed the levels in the Small Cell Order’s safe
harbor only if they reasonably approximate a locality’s costs,
which include expenses “related to processing an
application,” street closures, issuing “building or construction
permits,” and access to and maintenance of public rights of
way. Id. ¶¶ 32 n.71, 50 n.131, 79.1
No one doubts that exorbitant fees can impede the
deployment of communications infrastructure. See, e.g., P.R.
Tel. Co. v. Mun. of Guayanilla, 450 F.3d 9, 17–19 (1st Cir.
2006). But fees are prohibitive because of their financial
effect on service providers, not because they happen to
exceed a state or local government’s costs. Consider a $500
fee in Small Town A that exceeds the town’s costs by 1¢, and
a $2,000 cost-based fee in Big City B. By the Small Cell
Order’s logic, the lower fee is preempted, but the higher fee
is not. It is hard to rationalize the former under the statute,
which requires an actual and material inhibition of
telecommunications or wireless service. Sprint Telephony,
543 F.3d at 578.
1
The Small Cell Order also interpreted the phrase “fair and
reasonable compensation” in 47 U.S.C. § 253(c) to limit state and local
fees to cost-recovery. Small Cell Order ¶ 55. But the agency declined to
use this savings clause “as an independent prohibition on conduct that is
not itself prohibited by [§] 253(a).” Id. ¶ 53 n.143; see also id. ¶ 50 n.132.
78 CITY OF PORTLAND V. UNITED STATES
Perhaps for this reason, this court over a decade ago
“decline[d]” to hold “that all non-cost based fees are
automatically preempted” under the Telecommunications
Act. See Qwest Commc’ns Inc. v. City of Berkeley, 433 F.3d
1253, 1257 (9th Cir. 2006), overruled on other grounds by
Sprint Telephony, 543 F.3d at 578.2 The FCC was aware of
this precedent when it issued the Small Cell Order, but
expressly “reject[ed] the view of those courts that have
concluded that [§] 253(a) necessarily requires some
additional showing beyond the fact that a particular fee is not
cost-based.” See Small Cell Order ¶ 53 n.143 (citing Qwest,
433 F.3d at 1257).
On this record, the FCC has not adequately explained its
basis for concluding, contra our precedent, that there is an
intrinsic relationship between a fee’s approximation of costs
and its prohibitive effect on service providers. The FCC’s
reliance on individual fees it considers “excessive” tells us
that fees can work effective prohibitions. But this does not on
its own justify a blanket prohibition on all above-cost fees.
A $7,500 fee in Portland may well prohibit service, but that
is because of the financial toll it inflicts, not because it
exceeds the city’s costs. And the FCC has not identified in
the administrative record the frequency of above-cost fees or
the amounts that localities have generally charged above cost.
2
Qwest applied a lenient standard that more easily allowed the FCC
to show an effective prohibition, 433 F.3d at 1256, a standard our en banc
court later rejected. See Sprint Telephony, 543 F.3d at 576–78. If above-
cost fees were not per se prohibitions under the less stringent Qwest
standard, it is hard to see how they would be under the stricter approach
of Sprint Telephony. I do not suggest that Qwest imposes a “legal” bar to
the FCC’s contrary determination, Maj. Op. 43, but rather that the FCC
has not adequately explained the basis for its conclusion here.
CITY OF PORTLAND V. UNITED STATES 79
The FCC has instead determined that a prohibition on all
above-cost fees is justified because all above-cost fees, in the
aggregate, effectively prohibit 5G deployment. The linchpin
of the agency’s aggregation theory is a 2018 study by
Corning, Inc., which estimates at over $2 billion the cost-
savings and reinvestment from reduced fees. Small Cell
Order ¶¶ 7, 60 & n.169. But the Corning Study is not about
fees above costs. And the FCC has not explained how this
study tells us about the prevalence of above-cost fees or the
burden such fees place on service providers.
Instead, the Corning Study calculated “the cost savings
from capping fees at a level in line with the median of recent
state regulations,” estimating that amount at over $2 billion.
Because this is not a measure of fees above costs, the Corning
Study does not say whether the caps it used to measure
savings approximate costs. Indeed, the Corning Study notes
that “[t]here is still significant uncertainty around what
‘typical’ rates are.” The study further states that “attachment
and application fees” are “lesser drivers” of 5G deployment
economics, raising questions about the extent to which all
fees above costs necessarily effectively prohibit service.
At bottom, what the Corning Study conveys is that if fees
are reduced, it will produce cost savings to those who pay the
fees. Small Cell Order ¶¶ 50, 53, 55–56, 60 & n.169, 64–65
& nn.194–95. But that commonsense observation would be
true of any fee considered in the aggregate. And it would
seemingly mean that any fee in any amount could qualify as
an effective prohibition, once aggregated. The same would
be true of the aggregate effects of any form of regulation that
localities would apply outside the fee context. I am therefore
concerned that on the record as it stands, the FCC’s approach
lacks a limiting principle. At least absent some estimated
80 CITY OF PORTLAND V. UNITED STATES
quantification of above-cost fees in the aggregate (which the
Corning Study does not provide) or some further estimate tied
to the rule it adopted, the FCC’s logic would appear to justify
the preemption of any state or local rule.
The FCC’s “reinvestment” theory invites similar
concerns. It may be true that every fee imposes some cost
that, if avoided, could potentially be reinvested to expand 5G
coverage. But it does not follow that every type of fee rises
to the level of an “effective prohibition,” which is the line
Congress drew in the Telecommunications Act. See Cal.
Payphone, 12 F.C.C. Rcd. at 14209 (stating that, “standing
alone,” the fact that providers “would generate less revenue
. . . does not necessarily mean that [services] are impractical
and uneconomic”) (quotations omitted); cf. AT&T Corp. v.
Iowa Utils. Bd., 525 U.S. 366, 390 n.11 (1999) (disagreeing
“that a business can be impaired in its ability to provide
services—even impaired in that ability in an ordinary, weak
sense of impairment—when the business receives a
handsome profit but is denied an even handsomer one”). A
provider reinvestment theory, without more, would similarly
appear to justify the preemption of any local policy that
imposes costs on providers.
On this record, the FCC thus has not shown that above-
cost fees effectively prohibit service in many, most, or a
plurality of cases. I therefore cannot conclude that the agency
has articulated “a rational connection between the facts found
and the choice made.” Motor Vehicle Mfgs. Ass’n v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quotations
omitted).
The FCC itself recognizes that “in theory, a sufficiently
small departure from actual and reasonable costs might not
CITY OF PORTLAND V. UNITED STATES 81
have the effect of prohibiting service,” but concludes its cost-
based standard is still appropriate because “the record does
not reveal an alternative, administrable approach to
evaluating fees.” Small Cell Order ¶ 65 n.199. Concerns
about administrability, though important as a policy matter,
must still be operationalized under the statute’s effective
prohibition standard. A rule prohibiting fees that exceed cost
by $1 would be equally administrable, but that does not mean
such fees are invariably effective prohibitions on service,
which is the relevant question under §§ 253(a) and 332(c)(7).
The Order’s safe harbors underscore my concerns. The
FCC concedes that its safe harbors, which are not based on
estimated costs, tolerate fee levels “in excess of costs in many
cases.” Small Cell Order ¶ 79 n.233. That makes it more
difficult to credit the agency’s finding that above-cost fees are
per se effective prohibitions on service. The safe harbor also
allows local governments to charge recurring fees of $270,
which is substantially greater than the $150 cap on recurring
fees used to calculate cost-savings in the Corning Study.
There are also discrepancies between the FCC’s safe harbors
for application fees and the Corning Study’s caps. The FCC
does not estimate how much of the over $2 billion in cost-
savings from the Corning Study would be left over under its
more expansive safe harbors. Nor has the agency explained
what portion of that figure can be attributed to above-cost
fees.
I would have vacated and remanded the Small Cell
Order’s prohibition on above-cost fees. See 5 U.S.C.
§ 706(2)(A), (E). While the FCC’s objective of advancing
5G service is undoubtedly an important one, Congress set
limits on when local actions can be preempted. While a
prohibition on all above-cost fees may well be justifiable, I do
82 CITY OF PORTLAND V. UNITED STATES
not believe the FCC has sufficiently justified it on the present
record. With the exception to its references to legislative
history, I otherwise join the court’s opinion in full.