TO: Kelly Madding
FROM: David Lohman, City Attorney
RE: City Moratorium on Broadband Installations
DATE: April 6, 2020
Councilmembers apparently have received emails saying cities have legal authority to impose a moratorium on broadband installations (such as cell towers) during the current state of emergency. Cities do not have such authority.
The misstatements in the emails may stem from a misreading of a fairly dense section of a Federal Communications Commission (FCC) Order. This Order does allow – in certain narrow circumstances -- for state-imposed emergency moratoria on processing of applications for broadband infrastructure developments. But the Order makes clear that such emergency-related moratoria can only be imposed by states – not by cities. The relevant section of the FCC order is provided on page two of this memo, with relevant portions underlined.
The points immediately below illustrate why the referenced section from the FCC Order does not now give the City of Ashland any special emergency-related authority to unilaterally suspend or deny the current AT&T application for broadband infrastructure on SOU property or any other application for a broadband installation.
1. The cited provision is in an FCC Order concerning only 5G broadband installations. The current AT&T application for a broadband installation on the SOU campus is said to be for enhancing 4G service. The City of Ashland has so far not received any application, pre-application, or any other indication of intent to seek approval for a 5G installation.
2. The cited provision makes clear a moratarium is permissible only in an emergency situation in which installation and use of telecommunications facilities must be halted because they cannot the achieved safely. Footnote 579 to Section 157 cites a previous FCC order to make the point that a moratorium must be necessary, as opposed to merely reasonable: “[a]n interpretation of section 253(b) that a state’s action merely be reasonable ignores the specific language of the statute requiring such state action to be ‘necessary’”.
3. Most telling, Section 157 makes clear that only states can impose the potential moratoria it discusses. That is, cities have no legal authority to impose such a moratorium even during a state of emergency.
NOTE: During this state of emergency, the Community Development Department and the Planning Commission are proceeding with their work as much as social distancing and teleconferencing will allow. For example, Planning staff is now reviewing an AT&T application for a 4G broadband installation on the SOU campus primarily intended to facilitate improved internet service for students on campus. Within the next week or so, staff should conclude its determination of whether the application is complete and otherwise qualifies for Planning Commission consideration.
FCC THIRD REPORT AND ORDER AND DECLARATORY RULING:
Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment
33 FCC 18-111
Released: August 3, 2018
Section 157. We recognize that there may be limited situations in the case of a natural disaster or other comparable emergency where an express or de facto moratoria that violates section 253(a) may nonetheless be “necessary” to “protect the public safety and welfare” or to “ensure the continued quality of telecommunications services.” For example, in the event of a widespread power or telecommunications outage, a state might need to limit access to poles in a specific, affected area until existing power and telecommunications facilities can be restored. We interpret section 253(b) to allow for these state-imposed “emergency” express moratoria only if they are (1) “competitively neutral,” as expressly required by section 253(b), (2) necessary to address the emergency or disaster or related public safety needs, and (3) targeted only to those geographic areas that are affected by the disaster or emergency. Given that the emergency giving rise to such an express moratorium will be finite in time, a moratorium that extends beyond the duration of the emergency and associated repair efforts would not be permissible under section 253(b) because it would not be “necessary” to protect the safety and welfare of the public as section 253(b) requires. Similarly, an express, statewide deployment moratorium that is not targeted to the geographic areas affected by the natural disaster or emergency would not be permissible as it would not be “necessary” in the unaffected areas and would thus be impermissibly overbroad. We caution that mere assertions that express or de facto moratoria are necessary to achieve these goals do not suffice to invoke section 253(b). Emergency moratoria must be identified as such and clearly communicated to applicants; states and localities may not use a natural disaster or similar emergency as a guise for implementing de facto moratoria. While narrowly tailored emergency moratoria may be legally permissible under section 253, we encourage states to work collaboratively with providers before resorting to express moratoria in the wake of natural disasters or emergencies. The burden is on states to justify the imposition of a moratorium by specifically demonstrating that a moratorium serves and is narrowly-tailored in a manner that makes it necessary to achieve, one of the goals articulated in section 253(b). [Footnotes omitted]