Ninth Circuit Upholds Most FCC Restrictions on Local Government Review of Wireless Installations

The Ninth Circuit Court of Appeals’ recent decision in City of Portland v. Unites States, No. 18-72689 (9th Cir. 2020), significantly affects the ability of local governments to regulate the installation of so called “small cell” wireless facilities and addresses the ability of wireless providers to utilize utility poles. The underlying FCC orders issued in 2018 (the Orders) addressed issues arising from developing 5G broadband technology. The City of Portland upholds most, but finds some of the Orders overbroad. The decision contains nine rulings on the challenged Orders, and this Article will focus on those having the most significant implications for 5G deployment and state and local regulations. The decision rests upon the FCC’s authority created by the Telecommunications Act of 1996 (the Act) promulgated to address issues arising out of the then new wireless telecommunications industry. The Act states in pertinent part that the FCC is authorized: “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).”