Telecom Alert—9th Circuit Affirms Pole Attachment and Small Cell Orders; DoD Makes 100 MHz Available for Commercial Sharing; NEPA/NHPA Consent Decree; WA Dismisses CenturyLink 911 Outage Complaint; AURA Waiver Request–Vol. XVII, Issue 33

Date: Aug 17, 2020

Ninth Circuit Affirms FCC’s 2018 Pole Attachment and Small Cell Orders

The Ninth Circuit Court of Appeals has issued its Opinion in City of Portland v. FCC, rejecting investor-owned utility appeals of the FCC’s August 2018 Pole Attachment Order and most municipal appeals of the FCC’s Small Cell Order (Vol XVI, Issue 17).  Regarding the August 2018 Pole Attachment Order, utilities had appealed the Commission’s rulings on overlashing, preexisting safety violations, self-help in the electric space, and ILEC rates.  The court upheld all four rulings.  With respect to the Small Cell Order, the court upheld the FCC’s “safe harbor” fees of $500 per application and $270 per year for small cell wireless access to municipal rights-of-way and municipal poles and upheld the FCC’s “shot clocks” for municipal review of small cell wireless attachment applications.  The court rejected arguments that FCC regulation of small cell attachments to municipal poles violated the federal Pole Attachment Act restriction on FCC regulation of attachments to municipal poles.  Finally, the court rejected and remanded to the FCC certain restrictions placed on municipal aesthetics decisions.   For additional information, please contact Tom Magee (magee@khlaw.com; 202-434-4128) or Tim Doughty (doughty@khlaw.com; 202-434-4271).

DoD Makes 100 MHz Available for Commercial Sharing

Last week, the White House and the Department of Defense announced that 100 MHz in the 3450-3550 MHz band will be available for 5G use by the end of the summer.  DoD worked with NTIA to develop a sharing framework that would allow for commercial use while maintaining national security requirements.  FCC Chairman Pai praised the announcement and said that “Together with the spectrum being made available for 5G in the C-band as well as the 3.5 GHz band, we are now on track to have a 530-megahertz swath of mid-band spectrum available for 5G from 3.45 to 3.98 GHz.”  For more information, please contact Greg Kunkle (kunkle@khlaw.com; 202.434.4178).

Consent Decree for NEPA/NHPA Violation

The Commission and Public Service Towers, Inc. (PS Towers) entered into a consent decree for PS Towers’ violation of the Commission’s environmental and historic preservation rules.  After a consultant notified the Commission that PS Towers had constructed wireless facilities prior to completion of environment and historical reviews, the Commission opened an investigation.  The Commission found that PS Towers failed to comply with tribal notification procedures and failed to obtain a finding of no adverse effect from the State Historic Preservation office prior to starting construction.  As part of the consent decree, PS Towers agreed to pay a penalty of $16,000 and implement a compliance plan.  For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239).

Washington Dismisses CenturyLink 911 Outage Complaint

The Washington Utilities and Transportation Commission dismissed a complaint against CenturyLink for a 2017 911 outage.  The Commission found that, while there was a service outage, the outage did not violate the States rules.  The outage occurred during a planned switch upgrade and the Commission found that the network malfunction was not reasonably foreseeable and that CenturyLink and Intrado  “took reasonable steps in planning and implementing the switch upgrade to reduce the risk of error, provide prompt awareness of the outage, and restore 911 service as rapidly as possible.” For more information, please contact Wes Wright (wright@khlaw.com; 202.434.4239).

Parties Support AURA Waiver Request

Last week, Reply Comments were due in the Docket for a Waiver Request submitted by AURA Network Systems OpCo, LLC.  The Request seeks a waiver of the 450 MHz General Aviation Air-Ground Radiotelephone Service (450 MHz AGRAS) Rules to permit service to unmanned aircraft systems (UAS)  The record shows that parties believe AURA’s request would be in the public interest.  According to a letter submitted by UTC, a grant of the waiver request would “promote the ability of utilities and other critical infrastructure industries to use UAS to inspect utility assets and ensure they are repaired or replaced prior to failure.”  For more information, please contact Greg Kunkle (kunkle@khlaw.com; 202.434.4178).

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Keller and Heckman LLP's Telecom Business Alert is a complimentary weekly electronic update created by the Telecommunications Practice Group of Keller and Heckman LLP.  All articles, videos, and quotations are on topics of general interest and do not constitute legal advice for particularized facts.  Keller and Heckman LLP's Telecom Business Alert © 2020.  All rights reserved.  Articles may be copied with attribution.  To sign up for our weekly alert, please send us an email at telecomalert@khlaw.com and provide us with your name and email.  Please follow us on twitter at @KHtelecom.