FCC Sets Key Dates for 700 MHz Spectrum Auction
In a series of orders issued since mid-August, the FCC has finalized its plans for the auction of 62 MHz of spectrum in the 700 MHz band, now designated by the FCC as Auction 73. The Commission also pushed back the previously scheduled auction start date by eight days to Jan. 24, 2008, and has established other important dates for Auction 73. Due to the propagation characteristics of 700 MHz band spectrum and the amount of spectrum being auctioned, Auction 73 is widely viewed as being one of the most significant FCC auctions in years. The key dates, issues and procedures relating to Auction 73 are summarized below.
FCC Adopts Final Rules for 700 MHz Auction
In a proceeding that generated an unusual amount of press coverage and widespread industry interest, the Federal Communications Commission (FCC) on July 31 adopted revised band plan and services rules for its upcoming auction of 700 MHz band spectrum. The FCC will auction a total of 62 MHz of spectrum during the 700 MHz auction, which according to federal law must begin by Jan. 28, 2008. This spectrum is coveted by companies both within and outside of the wireless industry because it is ideal for carrying wireless signals.
The text of the FCC’s Order has not yet been released, so the specific details of the new auction rules are not yet known. We have summarized the key elements of the FCC’s News Release below, and will issue further advice when the FCC’s final 700 MHz Auction order is released.
Federal Court Enjoins Application of L.A. County Zoning Code to Wireless Facilities
In another important decision limiting the imposition of burdensome and discretionary local zoning requirements on wireless telecommunications deployment, on June 20, 2007, the United States District Court for the Central District of California granted NextG Networks of California, Inc. (NextG) a preliminary injunction, enjoining the County of Los Angeles (the County) from enforcing its zoning requirements on NextG’s installation of wireless telecommunications facilities. In doing so, the court found that the County’s zoning requirements, as applied to the deployment of wireless facilities, was preempted by Section 253(a) of the federal Communications Act and did not fall within the authority reserved to local governments under Section 253(c) to manage the public rights-of-way.1
Ninth Circuit Strikes Down Municipal Wireless Zoning Ordinance Under Section 253 of the Communications Act
Discretionary Aesthetic Factors and Burdensome Application Process Preempted
On March 13, 2007, the Ninth Circuit Court of Appeals in Sprint Telephony PCS, L.P. v. County of San Diego held that the County of San Diego’s wireless zoning ordinance is an unlawful barrier to entry in violation of Section 253 of the Communications Act. While the application of Section 253 to wireless zoning ordinances has been addressed by several district courts (as recently as last week, as DWT reported on March 12, 2007), the Sprint decision is the first by the Ninth Circuit and is critical because it preempts the County’s requirements. As such, it adds significant weight to the proposition that wireless telecommunications providers can challenge municipal zoning ordinances under Section 253 and that such ordinances will violate Section 253, on their face, if they impose burdensome processes or unfettered discretionary review.
Federal District Court Confirms Right of Wireless Providers to Bring Facial Challenge to Municipal Ordinances Under Section 253 of Communications Act
On March 8, 2007, the U.S. District Court for the District of New Mexico held that T-Mobile and Verizon Wireless could maintain a facial challenge to the City of Rio Rancho’s new wireless ordinance under Section 253 of the Communications Act. The Court’s decision in Verizon Wireless (VAW), LLC v. City of Rio Ranco is another District Court confirming both that telecommunications providers can bring “facial” challenges to local ordinances under Section 253 of the Communications Act, and that providers of wireless telecommunications can bring challenges to local wireless siting ordinances under Section 253. They are not limited to challenges to local zoning decisions under Section 332(c)(7) of the Communications Act.
California Enacts Legislation Facilitating Collocation of Wireless Facilities
Obtaining local government approval for new wireless facilities has been very difficult in many cities in California. However, some good news comes in the form of a new state statute.
California recently enacted provisions intended to facilitate the collocation of new wireless facilities at the sites of existing facilities by limiting local discretion over approval of collocated facilities. The provisions are contained in new Sections 65850.6 and 65964 of the Government Code, enacted by Senate Bill 1627. Governor Schwarzenegger signed the bill into law on Sept. 29, 2006.
