The FCC is poised to issued two orders: a $2 billion unfunded mandate “Small Cell” order that imposes rules akin to state small cell laws (such as SB 649 vetoed in 2017 by California Gov. Jerry Brown). The second, an "In-Kind Offset" Cable Proposed Rule, could drastically reduce or eliminate future cable franchise fee payments to local governments. Both items are expected to be adopted by the FCC on Sept. 26 — so local agencies that want to file objections must act fast. (See below to learn more about a community coalition.)
 
Among the impacts the “Small Cell” order will have on local government agencies is the dramatic reduction of a community’s authority to say “no” to demands for access to public property by the wireless industry in the rights of way. In addition, the order will: Cap annual rent for use of public property far below current market rates, limit local aesthetic control and shorten the shot clocks and wireless permitting timelines.
 
Meanwhile the Cable Proposed Rule would allow cable operators to deduct the value of in-kind contributions from cable franchise fee payments. These deductions include the value of service to schools, government buildings or capacity dedicated to Public, Education or Governmental channels, potentially forcing communities to choose between receiving cable franchise fee revenues and continuing PEG operations. The proposal does not currently cover states like California with state franchise rules, but that could change as the item moves forward at the Commission.
 
Objections to the draft orders must be filed with the FCC by Sept. 19. After the "Small Cell" order is issued by the FCC (which is expected on or shortly after Sept. 26), there will be a short window of opportunity to file an appeal and stay of the order in court. Without a stay, the "Small Cell" order could go into effect before the end of 2018. When the FCC issues the "In-Kind Offset" Cable Proposed Rule (also expected on Sept. 26), it will come as a “Notice of Proposed Rule Making,” allowing for a short period to file formal comments and replies expressing opposition, likely in October and November. The FCC could issue a final order on the cable issues by the end of this year. Appeal periods on that order would run from that point.
 
Best Best & Krieger LLP is forming a coalition of communities to fund a court challenge to the "Small Cell" order and oppose the "In-Kind Offset" Cable Proposed Rule at the Commission.

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