Richmond City Council
May 3, 2022

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Liability Act of 1980 (codified as 42 U.S.C. §§ 9601 et seq.) or California Health & Safety Code § 25316; (2) any “hazardous waste” listed California Health & Safety Code § 25140; or (3) any petroleum, including crude oil or any fraction thereof, natural gas or natural gas liquids.

“Indemnified City Party” or “Indemnified City Parties” means the City and its Agents, Invitees, elected and appointed officials and volunteers.

“Investigate and Remediate” means the undertaking of any activities to determine the nature and extent of Hazardous Material that may be located in, on, under or about the License Area or that has been, is being, or is in danger of being Released into the environment, and to clean up, remove, contain, treat, stabilize, monitor or otherwise control such Hazardous Material.

“Invitee” means the client, customer, invited guest, tenant, subtenant, licensee, assignee and/or sublicensee of a party in relation to the License Area.

“Laws” means all present and future statutes, ordinances, codes, orders, policies, regulations and implementing requirements and restrictions by federal, state, county and/or municipal authorities, whether foreseen or unforeseen, ordinary as well as extraordinary, as adopted or as amended at the time in question.

“License Area” means the same as that term is defined in Section 2.1 (License Area Defined).

License Fee” means the annual fee for each licensed Vertical Infrastructure authorized under this License, as specified in Schedule 1 (Annual License Fee ) which shall be reasonably approximate to the City’s objectively reasonable costs consisten t with applicable Laws.

“Licensee’s Office” means Licensee’s place(s) of business located at 5001 Executive Parkway, San Ramon, CA 94583 that contains all the records, in physical and/or electronic form, that Licensee is required to maintain under Section 27.

“Licensee’s On-Call Representative” means the person(s) assigned by Licensee to be on-call and available to the City regarding the operation of Licensee’s Equipment. Such person(s) shall be qualified and experienced in the operation of Equipment and shall be authorized to act on behalf of Licensee in any emergency in and in day-to-day operations of the Equipment.

“NESC” means the National Electrical Safety Code, as may be amended or superseded, published by the Institute of Electrical and Electronics Engineers.

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“Preliminary Plans” mean the detailed plans and equipment specifications, which include without limitation all equipment, mounts, hardware, utilities, cables, conduits, signage, concealment elements and other improvements proposed by Licensee but not yet approved by the City in connection with the License Area.

“Regulatory Approvals” means all licenses, permits and other approvals necessary for Licensee to install, operate and maintain Equipment on the License Area.

“Regulatory Fees” means fees associated with permit applications, permit issuance fees, inspection fees, fines, penalties or other fees charged by the City in connection with the Equipment and/or any related Regulatory Approvals. All Regulatory Fees shall be reasonably appr oximate to the City’s objectively reasonable costs consistent with applicable Laws.

“Reimbursement Fees ” means other fees for which the City has the right to receive reimbursement from Licensee under Applicable Laws. All Reimbursement Fees shall be reasonably approximate to the City’s objectively reasonable costs consistent with applicable Laws.

“Release” when used with respect to Hazardous Material includes any actual or imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing on, under or about the License Area, other City Property or the environment.

“RF” means radio frequency or electromagnetic waves.

“Streets” mean any public right-of-way, street, alley, highway, sidewalk , curb, gutter, driveway, parkwa y or other public place primarily used or dedicated for vehicular transportation within the City’s territorial and /or jurisdictional boundaries and subject to the City’s management regulations. The term “Streets” does not encompass any private property, private utility easements , any public easements for pedestrian ingress and egress across private property or any other public easement not dedicated for use as a public road or highway.

“Vertical Infrastructure ” means that ce rtain pole or similar structure, subject to this License, owned or controlled by the City and located in the public rights-of-way or public utility easements and meant for, or used in whole or in part for, communications service, electric service, lighting, traffic control or similar functions.

2. LICENSE AREA

2.1. License Area Defined

The parties to this License define “ License Area” to mean that certain space on that certain Vertical Infrastructure and other City Property, which includes without limit ation

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any conduits, chases, risers, trays, pipes, vaults, pull boxes, and hand holes, identified on the Approved Plans as occupied by the Equipment and licensed to Licensee, all as more particularly described and depicted in Exhibit A-1 (License Area). The parties may batch up to five (5) Vertical Infrastructure in this License and each License Area shall be more particularly described and depicted in additional exhibits that comply with all the requirements of Exhibit A-1 and Exhibit A-2, provided, however that when batching of Vertical Infrastructure may occur under this License, Licensee’s use of each Vertical Infrastructure shall be deemed to be a separate and distinct stand -alone license notwithstanding that the Vertical Structure may have been batched in one application and confirmed in additional exhibits to this License. As an illustration, and not as a limitation, a default declared by the City under this License pursuant to Section 21.1 below with respect to a Vertical Infrastructure shall be a d efault of that Vertical Infrastructure only, and such default shall not apply to any other Vertical Infrastructure identified in this License. The License Area shall be for Licensee’s exclusive use subject to the terms and conditions of this License includ ing the City’s paramount rights which will be superior to Licensee’s rights at all times as set forth in Section 2.2. below.

2.2. Limited Rights Created

This License grants Licensee only a non -possessory license to enter on to and use the License Area for the Permitted Use . The license shall be revocable in accordance with the terms and conditions of this License . Licensee expressly acknowledges and agrees that: (1) this License is not and shall not be deemed to be coupled with an interest; (2) the City retains legal possession and control over the Vertical Infrastructure for the City’s municipal functions, which will be superior to Licensee’s rights and interest in the Vertical Infrastructure, if any, at all times; (3) subject to the terms and conditions in this License, the City may terminate this License in whole or in part at any time; (4) except as specifically provided otherwise in this License, the City may enter into any agreement with third parties to use and /or occupy the Vertical Infrastructure and/or other City Property; and (5) this License does not create and will not be deemed to create any partnership or joint venture between the City and Licensee.

2.3. No Impediment to Municipal Functions

Except as expressly provided otherwise in this License, this License shall not limit, alter or waive the City’s absolute right to use the License Area, in whole or in part, as infrastructure established and maintained for the City’s and the public’s benefit.

2.4. License Area Condition

Licensee expressly acknowledges and agrees to enter on to and use the License Area in its “as-is and with all faults” condition. The City makes no representations or warranties whatsoever, whether express or implied, as to the Licen se Area’s condition or suitability for Licensee’s use. Licensee expressly acknowledges and agrees that neither the City nor its Agents have made, and the City expressly disclaims, any representations or warranties whatsoever, whether express or implied, wi th respect to the License Area’s

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physical, structural or environmental condition, the License Area’s present or future suitability for the Permitted Use or any other matter related to the License Area. This License shall not be deemed a warranty of title by the City.

2.5. Licensee’s Due Diligence

Licensee expressly represents and warrants to the City that Licensee has conducted a reasonably diligent and independent investigation, either for itself or through an Agent selected by Licensee, into the Licens e Area’s condition and suitability for Licensee’s intended use, and that Licensee relies solely on its due diligence for such determination.

Licensee further expressly represents and warrants to the City that Licensee’s intended use is the Permitted Use as defined in this License. Any testing performed by Licensee or its Agents shall be subject to the provisions in Section 6.6 (Damage or Alterations to Other Property). In addition to any other conditions that the City may impose on such testing, Licensee shall have the obligation to repair any damage caused by such testing and to restore all affected areas to the condition that existed immediately prior to such testing.

2.6. Diminutions in Light, Air or Signal Transmission or Reception

In the event that a ny existing or future structure diminishes any light, air or signal propagation, transmission or reception, whether erected by the City or not, Licensee shall not be entitled to any reduction in any License Fee, Regulatory Fees, Reimbursement Fees or any o ther sums payable to the City under this License, the City shall have no liability to Licensee whatsoever and such diminution will not affect this License or Licensee’s obligations except as may be expressly provided in this License.

2.7. Certified Access Specialist Disclosure

Pursuant to California Civil Code § 1938, as may be amended or superseded, and to the extent applicable to this License, the City expressly advises Licensee, and Licensee expressly acknowledges, that a Certified Access Specialist (as defined in California Civil Code § 55.53) has not inspected any License Area in whole or in part to determine whether it meets all applicable construction-related accessibility requirements.

3. USE OF LICENSE AREA

3.1. Permitted Use

Licensee may use the License Area solely to construct, install , operat e and maintain Equipment for transmission and reception of wireless communications signals (the “Permitted Use”) in compliance with all applicable Laws, which includes without limitation the Richmond Municipal Code and any conditions in any Regulatory Approvals and for no other use whatsoever without the City’s prior written consent, which the City may withhold in its sole and absolute discretion for any or no reason.

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3.2. Prohibition on Non-Small Wireless Facilities

The City intends this License to cover only wireless facilities that (a) qualify as a “small wireless facility” as that term is defined by the FCC under 47 C.F.R. § 1.6002(l); and (b) have been approved by the City in accordance with all a pplicable provisions in the Richmond Municipal Code . Licensee expressly acknowledges and agrees that the Permitted Use under this License does not include the right to use any Vertical Infrastructure as a support structure for a “macro cell” or a tradition al wireless tower or base station.

3.3. Prohibition on Nuisances

Licensee shall not use the License Area in whole or in part in any unlawful manner or for any illegal purpose. In addition, Licensee shall not use the License Area in whole or in part in any manner that constitutes a nuisance as determined by the City in its reasonable discretion. Licensee shall take all precautions to eliminate any nuisances or hazards in connection with its uses and activities on or about the License Area.

3.4. Signs and Advertisements

Licensee acknowledges and agrees that this License do es not authorize Licensee to erect, post or maintain, or permit others to erect, post or maintain, any signs, notices, graphics or advertisements whatsoever on the License Area, except as may be specifically authorized under this License or as may be required for compliance with any Regulatory Approvals and applicable Laws.

4. TERM

Unless earlier terminated in accordance with this License or as may be permitted under applicable Laws, the initial term under this License shall commence on the Effective Date and expire ten (10) years from the Effective Date (the “ Initial Term ”). Following the expiration of the Initial Term, this License shall automatically renew for two (2) subsequent terms of five (5) years each (each a “ Renewal Term”) unless either party provides the other party with at least one hundred eighty (180) days’ written notice prior to the expiration of the then-current term of their intent not to renew. Licensee may apply for a new license within no later than thirty (30) days before this License term expires, or at any time after this License’s expiration or termination.

5. FEES

5.1. Annual License Fee/Regulatory Fees/Reimbursement Fees

Licensee shall pay the first annual License Fee within thirty (30) days from the Effective Date without any prior demand, deduction, setoff or counterclaim for any reason.

Thereafter, Licensee shall pay the City the License Fee on the anniversary of the Effective Date throughout the Term without any prior demand, deduction, setoff or counterclaim for

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any reason , other than as provided in Section 5.3 below for late fees . Schedule 1 attached to this License and incorporated by this reference specifies the License Fee payable by Licensee to the City in each year throughout the Term. Unless otherwise adjusted in accordance with this License, the License Fee shall automatically increase by three percent (3%) each year on the anniversary of the Effective Date. In addition to the License Fee, Licensee shall pay application and permit fees which comprise a part of Regulatory Fees at the time of Licensee’s filing of the application or permit , as the case may be. Other Regulatory Fees not due at the time of Licensee’s filing of the application or permit, as the case may be, shall be paid as otherwise specified under applicable Laws or the City’s usual course of business that does not conflict with applicable Laws.

5.2. Fee Adjustments by City

At any time throughout the Term, the City shall have the option (but not the obligation) to adjust any License Fee, Regulatory Fees and Reimbursement Fees to reflect the reasonable approximation of the City’s objectively reasonable costs consistent with applicable Laws that are incurred in connection with this License , any Regulatory Approvals issued or administered by the City in connection with this License or the Equipment or Licensee’s acts or omissions on or about the License Area and/or the Streets. The City may exercise such option either by a resolution approved and adopted by the City Council (a “ Fee Resolution”) or by written notice to Licensee (the “Adjustment Notice”). If the adjustment concerns the annual License Fee, the City shall have the right to substitute a new Schedule 1 to reflect such adjustment in either a Fee Resolution or an Adjustment Notice. Any adjustment by Fee Resolution shall be effective at the same time such Fee Resolution becomes effective. Any adjustment by Adjustment Notice shall be immediately effective. Licensee shall have the right to appeal any Adjustment Notice to the City Council in the manner prescribed by the Richmond Municipal Code.

5.3. Late Fees

In the event that Licensee fails to pay any License Fee or any other amount payable to the City within 10 days after the City notifies that such amounts are due and unpaid, such amounts will be subject to a late charge equal to six percent (6%) of unpaid amounts.

5.4. Default Interest

Any License Fee, Regulatory Fees, Reimbursement Fees and all other amounts payable to the City other than late charges will bear simple interest at ten percent (10%) per annum or the maximum rate permitted by law, whichever is less, from the due date when not paid within ten (10) days after due and payable to the City. Any sums received shall be first applied towards any interest, then to the late charge and lastly to the principal amount owed. Any interest or late charge payments will not alone excuse or cure any default b y Licensee.

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5.5. City’s Right to Cost Reimbursement

Notwithstanding anything in this License to the contrary, t he City shall be entitled to recover from Licensee a reasonable approximation of the City’s costs consistent with applicable Laws where the costs themselves are reasonable and are non-discriminatory to furnish, provide and/or perform any services in connection with this License and any Regulatory Approvals issued or administered by the City, which includes without limitation any such costs incurred by City staff or the City’s contractors, consultants and experts to review per mit applications, issue permits or supervise or inspect any construction, installation or other work in connection with this License . Payments by Licensee for any License Fee, Regulatory Fees, and Reimbursement Fees in connection with this License or any related Regulatory Approvals issued or administered by the City shall not relieve Permittee’s obligation to reimburse the City for any and all actual , reasonable and documented costs incurred by the City in the future consistent with applicable Laws .

Licensee shall reimburse the City for all such costs within thirty (30) days after Licensee’s receipt of a written demand from the City for reimbursement and reasonable documentation to support such costs. The provisions in this Section 5.5 shall survive the expiration, revocation or termination of this License.

5.6. City’s Right to Fair Market License Fees Reserved

Licensee acknowledges that: (a) the City is compelled by applicable Laws, which includes without limitation the Order, to accept certain reasonable and actual cost-based rates and compensation; (b) but for such Laws, the City would be entitled to condition its assent to any lease, license or other agreement for attachments to its Vertical Infrastructure (such as this License) on consideration that exceed the City’s reasonable and actual costs; and (c) but for such Laws, the City would not assent to all the terms and conditions in this License. Licensee further acknowledges that, in the event that a repeal or invalidation of the Order or other such laws described in this Section 5.6 is final and unappealable, the then-current License Fee shown in Schedule 1 and the License Fee in all remaining years on the Term shall be replaced by the amount(s) shown in Schedule 2 (City’s Estimated Fair Market License Fees), attached hereto and incorporated herein upon thirty (30) days’ written notice to Licensee , provided; however, that the replacement fee shall be prorated for the remainder of the first year in which the then current License Fee is replaced. “Final and unappealable” as used in this Section 5.6 means: (1) all appeal rights by the FCC or its supporting intervenors have elapsed or been exhausted after a judicial order finding the limitations on the License Fee invalid for any reason, regardless of whether such order includes a remand to the agency for further proceedings; or (2) Congress has legislatively repealed or otherwise invalidated the limitations on the License Fee. As an illustration, and not as a limitation, if the License Fee commenced in 2021 and there was a final and unappealable invalidation of the Order or Congress has legislatively repealed or otherwise invalidated the limitations on the License Fee in 2023, then the License Fee in 202 3 would increase from $286.44 to $ 1,591.35 with proration of the replacement fee for the remainder of 2023, the License Fee in 2024 would be $1,639.09 and so on until the License expires in 2041 or was earlier terminated in accordance with its terms.

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5.7. In Lieu Fee for Landscape Restoration and Maintenance

If the installation, construction or other work on or about the License Area damages or destroys any landscape features that would require the Licensee to repair, replace and/or maintain any existing or new landscape features pursuant to the Richmond Municipal Code or other applicable City policies, the City may (but shall not be obligated to) enter into a written agreement with the License e to accept an in -lieu fee for the actual cost to repair, replace and/or maintain the existing and/or new landscape features on the Licensee’s behalf. Such in-lieu fee(s) shall be established by the City in consultation with the Licensee and shall be reaso nably related to the actual cost of any such repair, replacement and/or maintenance necessitated by the damage or destruction caused by Licensee’s installation, construction or other work.

6. CONSTRUCTION, INSTALLATION AND MODIFICATIONS

6.1. Regulatory Approvals

Licensee shall not commence any installation, construction and other work on or about the License Area until and unless Licensee first obtains all necessary prior Regulatory Approvals, which includes without limitation any approvals required to provide the services offered by Licensee either to the public or Licensee’s customers within the geographic area that encompasses the City’s territorial and/or jurisdictional boundaries, and any required use permits, design review permits, encroachment per mits, building permits, grading permits and electrical permits. Any installation, construction or other work performed by Licensee or its Agents or Invitees without such Regulatory Approvals will be a default under this License in addition to any other liabilities or penalties the City, in its regulatory capacity, may impose on Licensee for the same acts or omissions.

6.2. Compliance with Approved Plans

Upon the City’s approval of all permits required to commence construction for Licensee’s construction and/or installation work on the License Area, the Approved Plans shall be substituted for the Preliminary Plans. Licensee shall perform all installation, construction and other work in connection with the License Area (1) in accordance with the terms and conditions in this License; (2) at Licensee’s sole cost and expense, and at no cost to the City; (3) in strict compliance with the Approved Plans; (4) in compliance with all applicable Laws, which includes without limitation all applicable provisions in the Richmond Municipal Code and any conditions in any applicable Regulatory Approvals; (5) in a safe, diligent, skillful and workmanlike manner ; and (6) to the City’s satisfaction limited to the enumerated factors within this Section 6.2. After any work at the License Area concludes, Licensee shall restore the License Area and any other City Property to the condition that existed immediately prior to the work commenced, normal wear and tear excepted.

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6.3. Changes or Corrections to Approved Plans

At all times relevant to this License, Licensee shall have the obligation to correct any errors or omissions in the Preliminary Plans (or, once approved, the Approved Plans) and related Regulatory Approval(s). Licensee shall immediately send written notice to the City in the event that Licensee discovers any such defects. The Approved Plans and/or amendments to Approved Plans by the City will not rele ase or excuse Licensee’s obligations under this Section 6.3.

6.4. Licensee’s Contractors and Subcontractors

Licensee shall use only qualified and trained persons and appropriately licensed contractors for all inst allation, construction or other work pe rformed on or about the License Area. At least five (5) business days before any installation, construction or other work commences on or about the License Area, Licensee shall provide the City with: (a) a schedule with all activities to be performed in co nnection with the installation, construction or other work; and (b) a list with all the names, contractors’ license numbers and contact information for all contractors or subcontractors who will perform the installation, construction or other work on the License Area.

6.5. Labor and Materials

Licensee shall be responsible for all direct and indirect costs (labor, materials and overhead) in connection with designing, purchasing and installing all Equipment in accordance with the Approved Plans and all applicable Laws. Licensee shall also bear all costs to obtain and maintain all Regulatory Approvals required in connection with the installation, which includes without limitation all direct and indirect costs to comply with any approval conditions or mitigat ion measures that arise from Licensee’s proposed installation. Licensee shall timely pay for all labor, materials, Equipment and all professional services related to the Permitted Use or furnished to the License Area at Licensee’s direction or for Licensee’s benefit. Licensee shall keep the License Area and all other City Property free from any and all mechanics’, materialmen’s and other liens and claims arising out of any work performed, materials furnished or obligations incurred by or for Licensee.

6.6. Damage or Alterations to Other Property

Nothing in this License authorizes Licensee to use, occupy, remove, damage or in any manner alter any private personal or real property, wherever located, owned by the City or any third parties. Licensee shall not remove, damage or in any manner alter any private personal or real property, wherever located, owned by the City or any third parties without prior written consent from property owner. The City may withhold and/or condition its consent to any request to alter any City Property in its sole and absolute discretion.

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6.7. Underground Service Alert

Licensee warrants and represents to City that Licensee is presently a member in good standing with the Underground Service Alert of Northern California and Nevada (“USA North 811”). Licensee shall maintain and keep current its membership in USA North 811 throughout the Term. Prior to any excavation performed in the Streets, Licensee shall observe and perform all notice and other obligations req uired under applicable Laws, which includes, without limitation, California Government Code §§ 4216 et seq., as may be amended or superseded.

6.8. Damage and Repair to Subsurface Structures

Any excavation performed in the Streets must be monitored by Li censee for any lateral movement, trench failures and other similar hazards. Licensee shall, at Licensee’s sole cost and expense, repair any damage (which includes without limitation any subsidence, cracking, erosion, collapse, weakening and/or any loss or reduction in lateral or subjacent support) to the Streets, any adjacent private property, any utility lines or systems (whether overhead or underground) and any sewer and/or water lines or systems resulting from or in connection with any excavation by Licensee or its Agents. All repair or restoration work, normal wear and tear excepted, performed pursuant to this Section 6.8 shall be performed under the City’s supervision and to the City’s satisfaction.

6.9. Equipment Modifications

If, after the initial construction, installation or other work is completed, Licensee proposes to modify existing Equipment or install new equipment on the existing License Area, then the following process and standards shall apply.

(a) Routine Maintenance/Repair & “Like for Like” Replacement. Without the requirement of obtaining the City’s prior consent, Licensee shall have the right to (a) perform routine maintenance and repair of any Equipment installed on a Vertical Infrastructure approved for use by the City pursuant to this License, and (b) perform “like- for-like” replacements of Equipment so long as (i) any such “like -for-like” replacement does not alter the visible aesthetic appearance of the installed Equipment, and (ii) the resulting installation does not (A) result in an increase in the size of the License Area, (B) materially increase the weight, size or structural loading of Licensee’s Equipment or on the applicable Vertical Infrastructure beyond the loading or utilization, if any, that was established as of the Effectiv e Date of this License or any subsequent City approval of Licensee’s Equipment for which City’s prior written consent was required , as the case may be; (c) does not change the status of Licensee’s compliance with radio frequency emission standards under applicable Laws and (d) and does not cause any interference with any municipal functions or equipment.

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(b) All Other Modifications, Additions or Upgrades . Any other modification, addition or upgrade to Licensee’s Equipment installed on a Vertical Infrastructure pursuant to this License shall require the City’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

(c) Compliance. Notwithstanding any modification, addition and/or upgrade rights granted to Licensee under this License, all work performed by or on behalf of Licensee pursuant to this License shall be performed in compliance with all applicable provisions in this License, which includes, without limitation Licensee’s obligation to obtain and pay for all Regulatory Approvals required for the proposed modification.

6.10. Post-Completion Inspections

Within ten (10) days after Licensee completes any Equipment construction, installation or other work for which the prior written consent is required under this License , Licensee shall provide the City with a written notice that confirms the precise locations and dates on which the Licensee completed the work . The City shall have the right to inspect Licensee’s Equipment at any time after Licensee completes any construction, installation or other work in connection with this License. If the City discovers any defects or non - compliant conditions in connection with the Equipment, Licensee shall, at Licensee’s sole cost and expense, correct any such defects and conditions within a reasonable time as determined by the City but not to exceed thirty (30) days, but in no event less than fifteen (15) business days following Licensee’s receipt of the City’s written notice of the alleged defects or non -compliance conditions, provided that the defects and conditions do not present a threat to public health and safety . Inspections and any re-inspections reasonably considered necessary by the City are deemed by the Parties to be “Regulatory Fees” and Licensee shall promptly reimburse the City for the same within thirty (30) days of Licensee’s receipt of City’s invoice accompanied by reasonable evidence of the Regulatory Fees so incurred by the City.

6.11. As-Built Plans and Maps

Within thirty (30) days after the City issues a certificate of completion, Licensee shall submit to the City as-built plans and maps in a format reasonably specified by the City. In addition to any format required by the City, all as-built plans and maps shall include digital copies in a native format compatible with the City’s document management, GIS and/or other digital information management systems. Licensee’s as-built plans and maps must show the accurate location and dimensions for all Equipment. The City shall have the right to reject any as -built plans or maps for cause, in which case Licensee shall file revised as-built plans and/or maps within thirty (30) days after notice from the City. The City shall have the right to incorporate t he as-built plans for the then -current description of the License Area in Exhibit A-1 and/or the then-current Approved Plans in Exhibit A-

2.

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6.12. Title to Licensee’s Equipment and Other Improvements

Except as specifically provided otherwise in this L icense, all Equipment and other improvements installed, constructed or placed on or about the License Area by Licensee or its Agents or Invitees will be and remain at all times Licensee’s personal property. All structural improvements to any Vertical Infra structure and any replacement Vertical Infrastructure, as approved by the City and shown in the Approved Plans, will become City Property and remain City Property should Licensee vacate or abandon such License Area, unless the City elects in a written noti ce to Licensee that it does not wish to take title to such structural improvements. All replacement Vertical Infrastructure shall become City Property upon the City’s approval and acceptance. After Licensee installs any replacement Vertical Infrastructure, the City will have the right to inspect the improvements and installation work and accept, reject and require corrections to such improvements or installation work to conform such improvements or installation work to the Approved Plans and/or applicable L aws. Licensee shall make any and all such conforming corrections to any replacement Vertical Infrastructure within 60 days after a rejection by the City. Paying for the cost of the replacement Vertical Infrastructure does not provide Licensee with any owne rship interest in the replacement Vertical Infrastructure, which the City shall be deemed to own. Licensee acknowledges and agrees that the City’s approval of this License will be the only consideration due to Licensee in exchange for transferring title to any replacement Vertical Infrastructure to the City, and Licensee will not be entitled to any additional pecuniary or non -pecuniary consideration. Such License Area shall be deemed abandoned if Licensee’s Equipment in the License Area is not in operation for any continuous six-month period except if such non-operation is due to acts of nature or other force -majeure circumstances or beyond the reasonable control of Licensee . Subject to Sections 22 (Termination) and 26 (Surrender of License Area), Licensee may remove its Equipment from the License Area at any time after thirty (30) days’ written notice to the City.

7. LICENSEE’S MAINTENANCE OBLIGATIONS

7.1. General Maintenance and Repair Requirements

Licensee shall maintain all Equipment installed on, under, over, in or about the License Area in good, safe and orderly condition at all times, and shall promptly repair any damage to any Equipment whenever repair or maintenance may be required, subject to any Regulatory Approvals if required for such maintenance work. All work performed by or for Licensee under this Section 7 shall be performed: (a) in accordance with the terms and conditions in this License; (b) at Licensee’s sole cost and expense, and at no cost to the City; (c) by only qualified, trained, experienced and appropriately licensed contractors or Licensee’s Agents or other personnel; (d) in a manner and with equipment and materials that will not interfere with or impair the City’s municipal operations on or about the License Area; (e) in a safe, diligent, skillful and workmanlike manner ; and (f) in compliance with all applicable Laws, which includes without limitation all applicable provisions in the Richmond Municipal Code and any conditions in any applicable Regulatory Approval(s).

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7.2. Damage Reports to the City

Licensee shall promptly notify the City if Licensee discovers damage or other alteration to the Streets, any City Property or any personal or real property owned by third parties for any reason and through any cause. Notices shall contain the following information to the extent available at the time Licensee sends the notice: (a) the location where the event occurred; (b) a statement to describe the damage or other alteration and the surrounding circumstances; (c) the names and contact information for any persons or entities involved in the matter, as well as the names and contact information for any potential witnesses to the damage or other alteration; and (d) any other pertinent information. Licensee will not be deemed to have assumed liability for any such damage or other alteration by giving such notice, unless such damage or other alteration was caused by or arose in connection with Licensee’s or its Agent’s or Invitee’s act, omission, negligence or willful misconduct. Licensee’s failure to provide notice to the City shall not be a material default entitling the City to terminate this License unless Licensee or its Agents or Invitees cause d such damage or other alteration and Licensee fails to repair the damage or other alteration within the time period prescribed for notice and cure under this License following License’s receipt of City’s written notice of the damage or other alteration alleged to be caused by Licensee, its Agents or Invitees . The Parties acknowledged and agree that Licensee’s failure to notify the City of damage or other alteration caused by any party other than Licensee, its Agents or Invitees may result only in an action for damages against Licensee.

7.3. Licensee’s Obligation to Make Repairs

In the event that Licensee or its Agents or Invitees directly or indirectly caused such damage or other alterations, Licensee shall, at its sole cost and expense, repair such damage or other alteration and restore the affected property to the condition that existed immediately before the damage or other alteration occurred, reasonable wear and tear excepted. If Licensee fails or refuses to perform its obligations under this Section 7 within fifteen (15) business days after Licensee’s receipt of written notice from the City, the City may (but will not be obligated to) cause the repair and restoration to be performed at Licensee’s sole cost and expense. The City may exercise its rights to perform Licensee’s obligations under this Section 7 if Licensee has not completed its repair within fifteen (15) business days’ following Licensee’s receipt of written notice from the City or without prior notice to Licensee when the City determines that the repair and/or restoration is immediately necessary to protect public health or safety. Licensee acknowledges that repair or restoration undertaken by the City shall be deemed to be Reimbursement Fees, and Licensee shall promptly reimburse the City for the same within thirty (30) days of Licensee’s receipt of City’s invoice accompanied by reasonable evidence of the Reimbursement Fees so incurred by the City.

In addition, Licensee shall indemnify, defend and hold any and all Indemnified City Parties harmless from and against any Claims in connection with such performance by the City except to the extent of the sole active negligence or willful misconduct of the City or any Indemnified City Parties, or any of them.

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7.4. Graffiti Abatement

In addition to Licensee’s other maintenance obligations under this License, Licensee shall remove any graffiti or other similar markings from the License Area and/or the Equipment deployed under this License within three (3) days of Licensee’s receipt of written notice from the City or as may be required under the Richmond Municipal Code, whichever is greater.

8. REARRANGEMENT AND RELOCATION

8.1. Rearrangement and Relocation for City Work

Licensee acknowledges that the City, in its sole discretion and at any time, may: (1) change any street grade, width or location; (2) add, remove or otherwise change any improvements owned by the City or any other public agency located in, on, under or along any Street, which includes without limitation any sewers, storm drains, conduits, pipes, vaults, boxes, cabinets, poles and utility systems for gas, water, electric or telecommunications; and/or (3) perform any other work deemed necessary, useful or desirable by the City (collectively, “ City Work”). The City reserves the rights to do any and all City Work without any admission on its part that the City would not have such rights without the express reservation in this License. In the event that the City determines that any City Work will require the Equipment to be rearranged and/or relocated Licensee shall, at its sole cost and expense, do or cause to be done all things necessary to accomplish such rearrangement and/or relocation. If Licensee fails or refuses to either permanently or temporarily rearrange and/or relocate the Equipment within a reasonable time which in no event shall be less than thirty (30) days following Licensee’s receipt of written notice of the City’s intention to undertake City Work which re quires the rearrangement and/or relocation of Licensee’s Equipment , then thereafter, the City may (but will not be obligated to) cause the rearrangement or relocation to be performed at Licensee’s sole cost and expense. The City may exercise its rights to rearrange or relocate the Equipment without prior notice to Licensee when the City determines that the City Work is immediately necessary to protect public health or safety. The City shall not be responsible for damage to, repairs to or maintenance of the Equipment or for any associated costs except to the extent caused by the City, its employees, Agents, contractors o r subcontractors. The City’s work to rearrange or relocate Licensee’s Equipment shall be deemed to be Reimbursable Fees, and Licensee shall p romptly reimburse the City for the same within thirty (30) days of Licensee’s receipt of City’s invoice accompanied by reasonable evidence of the Reimbursement Fees so incurred by the City. In addition, Licensee shall indemnify, defend and hold any and all Indemnified City Parties harmless from and against any Claims in connection with rearranging or relocating the Equipment, or turning on or off any water, oil, gas, electricity or other utility service in connection with the Equipment except to the extent of the sole active negligence or willful misconduct of the City, the Indemnified City Parties, of any of them.

Within ninety (90) days after any Equipment have been rearranged or relocated, Licensee

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shall file as -built plans and maps with the City in the s ame manner and subject to the same requirements as provided in Section 6.11 (As-Built Plans and Maps).

8.2. Rearrangement and Relocation to Accommodate Third Parties

Licensee shall reasonably cooperate with and promptly respond to requests to rearrange or relocate the Equipment to accommodate third parties authorized to use the Streets (“Third-Party Accommodations”). All costs to perform any Third-Party Accommodations shall be borne by the person or entity to be accommodated; provided, however, that Licensee shall be solely responsible to collect any costs incurred by Licensee from such third party and the City shall have no liability to Licensee for any such costs. Prior to any Third-Party Accommodations performed by Licensee, Licensee shall be permitted to require (1) either a cash deposit, bond or other surety from the person or entity to be accommodated in a commercially reasonable form and in an amount reasonably estimated by Licensee to cover the costs associated with the proposed Third-Party Accommodations; and (2) a written agreement signed by the person or entity to be accommodated to indemnify, defend and hold Licensee and its Agents harmless from and against any and all Claims that arise in connection with the proposed Third-Party Accommodations, except to the extent any Claims are directly caused by Licensee’s or its Agent’s negligence or willful misconduct. Nothing in this License shall be construed to require Licensee to perform any Third -Party Accommodations that would materially reduce, impair or otherwise diminish Licensee’s Equipment or Licensee’s operations on the License Area . Within ninety ( 90) days after any Third -Party Accommodations, Licensee shall file as-built plans and maps with the City in the same manner and subject to the same requirements as provided in Section 6.11 (As-Built Plans and Maps).

8.3. No Right to Rearrange or Relocate City Property

Nothing in this License will be construed to require the City or authorize Licensee to change any street grade, width or location , or add, remove or otherwise change any improvements owned by the City or any other public agency located in, on, under or along the License Area or any Street, which includes without limitation any sewers, storm drains, conduits, pipes, vaults, boxes, cabinets, poles and utility systems for gas, water, electric or telecommunications , for Licensee’s or any third party’s convenience or necessity.

9. COMPLIANCE WITH LAWS

9.1. Compliance with CPUC General Orders

In addition to Licensee’s obligation to maintain compliance with all other Laws, Licensee shall conduct all activities on the License Area in accordance with all applicable CPUC general orders, which includes without limitation CPUC General Order 95 and CP UC General Order 128 as those orders may be amended or superseded in the future, and all other rules, regulations and other requirements adopted or enacted by the CPUC.

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9.2. Compliance with Building and Electrical Codes

In addition to Licensee’s obligation to maintain compliance with all other Laws, Licensee shall conduct all activities on the License Area in accordance with the requirements in the California Building Code and the California Electric Code as adopted by the City with any legally permitted amendments.

9.3. Compliance with FCC RF Exposure Standards

Licensee’s obligation to comply with all Laws includes all Laws related to maximum permissible exposure to RF emissions on or about the License Area, which includes all applicable FCC standards , whether such RF emissions or exposure results from the Equipment alone or from the cumulative effect of the Equipment added to all other sources on or near the License Area.

9.4. Compliance with Prevailing Wage Regulations

The services to be provided under the License may be subject to prevailing wage rate payment as set forth in California Labor Code § 1771. The Licensee shall be solely responsible in determining whether prevailing wages apply under Labor Code § 1771.

Accordingly, to the extent that any such services are subject to the prevailing wage rate payment requirements, Licensee shall and shall cause its Agents to comply with all applicable California Labor Code requirements pertaining to “public works,” including the payment of prevailing wages in connection with the services to be provided to the City hereunder (collectively, “ Prevailing Wage Policies ”). Within ten (10 ) business days following Licensee’s receipt of the City’s written request, Licensee shall make available during Licensee’s regular business hours for the City to inspect at Licensee’s corporate offices in Contra Costa County which Licensee shall designate, copies of , Licensee’s payroll records that pertain to this License and are subject to the Prevailing Wage Policies and other relevant proof of compliance with the Prevailing Wage Policies consistent with the requirements in California Labor Code § 1776, as may be amended or superseded.

The City shall also have the right to copy such records, subject t o the City’s written agreement that the City shall only disclose such records to the extent that the City is required under applicable Laws to make such records available for review by or disclosure to third parties.

Licensee shall defend, indemnify and hold the City and Indemnified City Parties harmless from and against any and all present and future Claims, that arise from or in connection with Licensee’s obligation to comply with Prevailing Wage Policies and all Laws with respect to the installation, co nstruction or other work in connection with this License , which includes without limitation any and all Claims that may be made by Licensee’s Agents or any other contractors, subcontractors or other third parties pursuant to California Labor Code §§ 1726 a nd 1781, as amended and added by California Senate Bill 966 (Alarcon), and as may be amended or superseded in the future.

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To the extent applicable, as provided in SB 854 (Stats. 2014, ch. 28): (a) no contractor or subcontractor may be qualified to bid on , be listed in a bid proposal, subject to the requirements California Public Contracts Code § 4104, or engage in the performance of any contract for public work, unless currently registered with DIR and qualified to perform public work pursuant to California Labor Code § 1725.5 (Cal. Lab. Code § 1771.1(a)); (b) no contractor or subcontractor may be awarded a public works contract unless registered with the DIR to perform public work pursuant to California Labor Code § 1725.5 (Cal. Lab.

Code § 1771.1(b)); an d (c) work performed on the project is subject to compliance monitoring and enforcement by DIR (Cal. Lab. Code § 1771.4).

Without limiting Licensee’s obligation to defend, indemnify and hold the City and Indemnified City Parties harmless as provided in this Section 9.4, the City acknowledges that Licensee maintains that services to be provided under this License are not subject to Prevailing Wage Policies, and nothing in this Section 9.4 or elsewhere in this License is intended to waive or release any Claims or rights of Licensee to assert that such services are not subject to Prevailing Wage Policies.

10. PUBLIC WORKS’ OPERATIONS

10.1. City Access to License Area

Except as specifically provided otherwise in this License, the City and its Agents have the absolute right to access any License Area , in whole or in part , at any time and with or without notice for any purpose related to its municipal functions. The City will not be liable in any manner whatsoever, and Licensee expressly waives any Claims for inconvenience, disturbance, lost business, nuisance or other damages that may arise from the City’s or its Agents’ access to the License Area, which includes, without limitation, any Equipment removed in an emergency or other exigent circumstances pursuant to Section 10.4, except to the extent that the damage is caused directly and exclusively from the City’s or its Agent’s sole active negligence or willful misconduct and not contributed to by Licensee’s or its Agents’ or Invitees’ acts, omissions or negligence.

10.2. City’s Maintenance, Repairs or Alterations to License Area

The City may maintain, alter, add to, repair, remove from and/or improve the License Area as the City may, in its sole discretion, deem necessary or appropriate for its streetlighting operations and other municipal functions. The City shall not be obligated to maintain or repair the License Area, in whole or in part, solely for Licensee’s benefit. Except as may be expressly provided otherwise in this License , neither any City work on the License Area nor any condition on any License Area will: (a) entitle Licensee to any damages; (b) excuse or reduce any obligation by Licensee to pay any Fees or perform any covenant under this License ; or (c ) constitute or be construed as a constructive eviction or termination from the License Area.

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10.3. Notice to Licensee for Non-Emergency Maintenance or Repairs

From time-to-time, the City may find it necessary or appropriate to perform work on the License Area that temporarily affects the Equipment or requires the Equipment to be temporarily powered down. In non -emergency circumstances, the City will use reasonable efforts to: (a) make a good -faith effort to provide prior notice to Licensee’s On-Call Representative; ( b) allow Licensee’s On-Call Representative to observe the City’s work; and (c) avoid or minimize disruption to Licensee’s ordinary operations on the License Area, taking into account any unforeseen exigencies that may threaten persons or property. The provisions in this Section 1 0.3 will not be construed to impede or delay the City’s authority and ability to make changes to the License Areas necessary to maintain street light services, traffic control services, any municipal utility services (to the extent permissible under applicable Laws) or any other municipal functions carried out for the public’s health, safety, welfare or benefit.

10.4. Emergencies

In emergencies, and unless expressly provided in applicable Laws, the City’s work and operations will take precedence over Licensee’s operations, which includes without limitation any Equipment operated on the License Area, and the City may access the License Area in whole or in part as the City deems necessary in its sole and absolute determination and in accordance with this Section 10.4, with or without notice to Licensee.

When safe and practicable, as solely determined by the City, the City will notify Licensee of any emergency or other exigent circumstances that requires the City to remove or replace any City Property within the License Area and will allow Licensee to remove its Equipment before the City removes or replaces such City Property; provided, however, that the City will remove the Equipment from the License Area when in the City’s sole determination it would: (a) be unsafe or not practicable to wait for Licensee to perform (or cause to be performed) the work; (b) result in significant delay; or (c) otherwise threaten or compromise public health, safety, welfare or public services. The City will remove any Equipment with reasonable care and store such Equipment for retrieval by Licensee. The City shall provide notice to Licensee as soon as reaso nably practicable after such emergency and removal of any of Licensee’s Equipment. Licensee shall have the right to reinstall such removed Equipment (or equivalent replacement Equipment) at Licensee’s sole expense on the License Area and in accordance with the provisions in this License and all applicable Laws . Licensee expressly acknowledges that any act(s) taken by the City pursuant to this Section 1 0.4, which includes without limitation any Equipment removal or storage, will not be deemed to be a forcible or unlawful entry onto the License Area or any interference with Licensee’s contractual privilege to use the License Area.

11. INTERFERENCE

Licensee may not install, maintain or operate any Equipment in a manner that interferes with or impairs other communication (radio, telephone, data and/or other transmission or reception) or computer equipment lawfully used by the City and its Agents, which includes without limitation any first responders or other public safety personnel. Such interference

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will be a default by Licensee, and upon notice from the City, Licensee shall promptly eliminate such interference at no cost to the City. Licensee will be required to use its best efforts to remedy an d cure such interference without any impairment to any City operations. If Licensee does not promptly cure such default, the parties acknowledge that continued interference may cause irreparable injury to the City and, therefore, the City will have the right to bring an action against Licensee to, at the City’s election, immediately enjoin such interference and/or to terminate this License. The parties acknowledge that the Licensee possesses technical expertise that puts Licensee in the best position to identify and mitigate interference sources, and Licensee shall be primarily responsible for identification and mitigation work. Notwithstanding the foregoing, the City and Licensee hereby agree to comply with FCC guidelines and protocols with regard to third party interference.

12. LIENS

Licensee shall keep the License Area free and clear from any and all liens or other impositions in connection with any work performed, material furnished or obligations incurred by or for Licensee. Licensee will inform all contractors and material suppliers that provide any work, service, equipment or material to Licensee in connection with the License Area that the License Area is public property not subject to any mechanics’ liens or stop notices. In the event that any Lice nsee contractor or material supplier files any lien or imposition that attaches to the License Area, Licensee shall promptly (but in no case later than thirty ( 30) days after discovery) cause such lien or imposition to be released. In the event that Licensee does not cause such lien or imposition to be released within the thirty (30)-day period, the City will have the right, but not the obligation, to cause such lien or imposition to be released in any manner the City deems proper, which includes without limitation payment to the lienholder, with or without notice to Licensee.

Licensee shall reimburse the City for all costs and expenses incurred to cause such lien or imposition to be released (which includes without limitation reasonable attorneys’ fees) within ten (10) days after Licensee receives a written demand from the City together with reasonable documentation to support such costs and expenses.

13. UTILITIES

Licensee shall be responsible to secure its own utility services for its Permitted Use ; however, the City shall make good faith s effort to make its utility infrastructure available to Licensee as part of this License when the City determines that it is feasible to do so , or the City will make good faith efforts to identify an alternative and comparable Vertical Infrastructure where the City would permit Licensee to use the City’s utility infrastructure for its Permitted Use. Licensee shall not be permitted to “submeter” from any electrical service provided to the City on any License Area without the City’s prior written consent, which the City may withhold in its sole and absolute discretion. Licensee shall timely pay when due all charges for all utilities furnished to its Equipment on the License Area and shall directly pay the electric servic e provider in the event of any “submetering .” Any interconnection between the City’s and Licensee’s electrical facilities permitted by City shall be accomplished in compliance with all applicable Laws and all utility service

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providers’ policies for such interconnection and shall not compromise or affect the City’s then-existing tariff rates.

14. TAXES AND OTHER ASSESSMENTS

Pursuant to Revenue and Taxation Code Section 107.6, Licensee agrees to pay when due (and prior to delinquency ) any and all taxes, assessments, charges, excises and exactions whatsoever, including without limitation any possessory interest taxes, that arise from or in connection with Licensee’s use within the License Area or Licensee’s Equipment that may be imposed on Licensee under applicable Laws. Licensee shall not allow or suffer any lien for any taxes , assessments, charges, excises or exactions whatsoever to be imposed on the License Area or Licensee’s Equipment. In the event that the City receives any tax or assessment notices on or in connection with the License Area or Licensee’s Equipment, the City shall promptly (but in no event later than thirty (30) days after receipt) forward the same, together with reasonably sufficient written documentation that details any increases in the taxable or assessable amount attributable to Licensee’s Equipment. Licensee understands and acknowledges that this License may create a possessory interest subject to taxation and that Licensee will be required to pay any such possessory interest taxes. Licensee further understands and acknowledges that any sublicense or assignment under this License and any options, extensions or renewals in connection with this License may constitute a change in ownership for taxation purposes and therefore result in a revaluation for any possessory interest created under this License.

15. INDEMNIFICATION

15.1. Licensee’s Indemnification Obligations

Licensee, for itself and its successors and assigns, shall indemnify, defend and hold the Indemnified City Parties harmless from and against any and all Claims, incurred in connection with or arising in whole or in part from any act or omission by Licensee or its Agents, licensees, customers or invitees in connection with this License or any Equipment, whether any negligence may be attributed to any Indemnified City Parties or not, whether any liability without fault is imposed or sought to be imposed on any Indemnified City Parties or not, but except to the extent that that such Claim caused by the sole active negligence or willful misconduct of the City, the Indemnified City Parties, or any of them. Licensee’s obligations under this Section 15 includes, without limitation, all reasonable fees, costs and expenses for attorneys, consultants and experts, and the City’s actual costs to inve stigate and defend against any Claim. Licensee expressly acknowledges and agrees that: ( a) Licensee has an imm ediate and independent obligation to defend any Indemnified City Parties from any Claim that actually or potentially falls within this Section 1 5, even when the allegations in the Claim are or appear to be groundless, fraudulent or false; and ( b) Licensee’s obligations arise at the time any Indemnified City Parties tender a Claim to Licensee and continue until such Claim’s final, non -appealable resolution. Licensee’s obligations under this Section 15.1 shall survive this License’s revocation, termination or expiration.

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15.2. Licensee’s Defense of the City

In the event that any Claim is brought against any Indemnified City Parties in connection with any subject matter for which any Indemnified City Parties are indemnified by Licensee under this License, Licensee shall, upon written notice and at Licensee’s sole cost and expense, resist and defend against such Claim with competent and experienced legal counsel reasonably acceptable to the City, the Indemnified City Parties, or any of them. Such legal counsel retained by Licensee shall possess not less than ten (10) years’ experience in defending clients in similar actions or proceedings as those brought against the Indemnified City Parties; (b) is duly licensed to practice law in the State of California by the State Bar of California; (c) has no past or pending disciplinary actions by any United States tribunal or state bar association; and (d) has no actual or potential conflicts of interest with any Indemnified City Parties. Licensee shall not, without the C ity’s written consent, enter into any compromise or settlement agreement on any Indemnified City Parties’ behalf that: ( x) admits any liability, culpability or fault whatsoever on any Indemnified City Parties’ part; or (y) requires any Indemnified City Party to take or refrain from any action, which includes without limitation any change in the City’s policies or any monetary payments. Nothing in this License shall be construed to limit or preclude any Indemnified City Parties or their respective legal counsel from cooperating with Licensee and/or participating in any judicial, administrative, alternative dispute resolution or other litigation or proceeding. Licensee’s obligations under this Section 1 5.2 shall survive this License’s revocation, termination or expiration.

16. INSURANCE

Prior to any construction, installation or other work by Licensee or its contractors or subcontractors in, on, under or above the Streets, Licensee shall comply with all insurance requirements and other obligations contained in Exhibit B (Licensee’s Insurance Obligations), attached hereto and incorporated herein, and shall provide the City with all required certificate s and endorsements. Once in any consecutive three (3) year period, the City shall have the right to amend or replace the insurance requirements contained in Exhibit B on 60 days’ prior written notice to Licensee if the City’s risk manager determines that the then -current insurance requirements are inadequate to protect the City against risks associated with the Permitted Use or as may be required to comply with applicable Laws; provided, however, that Licensee may request to meet and confer with the City during the 60-day period to ensure that Licensee can reasonably comply with the amended or replaced requirements in Exhibit B. Any noncompliance with any insurance requirements in this License by Licensee or its contractors or subcontractors shall entitle the City to declare Licensee in default of this License subject to Licensee’s right to cure such non -compliance within the time period prescribed in Section 21.1 of this License following Licensee’s receipt of the City’s written notice alleging Licensee’s non-compliance with any required insurance in Exhibit B.

17. LIMITATIONS ON THE CITY’S LIABILITY

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17.1. General Limitations

Licensee expressly acknowledges that the City is not responsible or liable to Licensee for any Claims that arise in connection with: (a) acts or omissions by persons or entities using the Streets or other areas adjoining, adjacent to or connected with any License Area; (b) any utility service interruption; ( c) theft; (d) burst, stopped or leaking water, gas, sewer, steam or other pressurized pipes; (e) fires, floods, earthquakes or other force majeure; (f) any vehicular collision on or about the License Area or other City Property; (g) any costs or expenses incurred in connection with any relocation or rearrangement as provided in Section 8 (Rearrangement and Relocation) ; or ( h) any costs or expenses incurred in connection with any removal or restoration as provided in this License; all except to the extent such events are caused by the sole active negligence or willful misconduct of the City, the Indemnified City Parties, or any of them . Licensee, in perpetuity, expressly waives and releases all Claims it may now or in the future have against any Indemnified City Parties, whether known or unknown, whether foreseeable or unforeseeable, that arise in connection with the events described in this Section 17 as may be related to this License or locations on or about the License Area. In no event will Licensee or its Agents be personally liable to the City for any default, breach or any other nonp erformance or unpaid sum by Licensee. The provisions in this Section 17.1 shall survive the revocation, termination or expiration of this License.

17.2. Consequential, Indirect or Punitive Damages

Without limiting any indemnification obligation placed on Licensee or other waivers contained in this License, Licensee fully releases, waives and discharges forever any and all Claims against the City for consequential and incidental damages that may arise from or in connection with this License or Licensee’s use on or about the License Area, which includes without limitation any lost profits related to any disruption to Equipment, any interference with uses or operations conducted by Licensee, from any cause whatsoever, and whether or not due to the active or passive negligence or willful misconduct by the City or any Indemnified City Parties, and covenants not to sue for such damages the City, the City’s departments and all City agencies , officers, directors and employees, and all persons acting by, through or under them.

17.3. No Relocation Assistance

This License shall not create any right in Licensee to receive any relocation assistance or payment for any reason under the California Relocation Assista nce Law (California Government Code §§ 7260 et seq. ), the Uniform Relocation Assistance and Real Property Acquisition Policies Act (42 U.S.C. §§ 4601 et seq.), as either may be amended or superseded, or any similar Laws upon or after any termination. To th e extent that any such Laws may apply, Licensee waives, releases and relinquishes forever any and all Claims that it may have against the City for any compensation from the City except as provided in Section 19 (Condemnation).

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17.4. No Personal Liability for City Personnel

In no event will any City board, agency, member, officer, employee or other Agent be personally liable to Licensee, its successors or assigns, for any default, breach, other nonperformance or sum unpaid sum by the City. The provisions in this Section 17.4 shall survive this License’s revocation, termination or expiration.

18. CASUALTY

18.1. City’s Rights Upon a Casualty Event

In the event the License Area in whole or in part becomes damaged due to any cause, the City will have no ob ligation whatsoever to repair or replace the damaged License Area. The City shall only be responsible to Licensee for damage to Licensee’s Equipment to the extent caused by City, its employees, Agents, contractors or subcontractors. Within approximately thirty (30) days after the date on which the City discovers damage or destruction to the License Area , the City will give Licensee notice of the City’s decision whether to repair or replace the damaged License Area and its good- faith estimate of the amount of time they will need to complete the work. If the City cannot complete the work within forty-five (45) days after the date that the City specifies in its notice, or if the City elects not to do the work, then Licensee will have the right to terminate this License on fifteen (15) days’ notice to the City. If Licensee elects not to terminate this License, payment of the License Fee shall abate until Licensee is able to resume full on- air operation of its Equipment in the ordinary course of Licensee’s busin ess, except that Licensee shall not be exempted from its obligations to reimburse the City for the City’s actual costs caused by Licensee during this period. If the City elects to remove, rather than repair or replace, the damaged or destroyed License Area , then this License will automatically terminate on the last day of the month in which the removal occurs. If the acts of third parties or an act of nature or other force -majeure circumstance outside the control of Licensee or its Agents or Invitees damage s or destroys the License Area to such an extent that, in the City’s reasonable determination, the Equipment on the License Area cannot be operated in a safe manner, the City may elect to terminate this License on thirty (30) days’ notice to Licensee and r equire Licensee to remove the Equipment from the damaged License Area before the termination date specified in the City’s notice.

18.2. Licensee’s Termination Rights Upon a Casualty Event

In the event that the City terminates this License pursuant to Section 18.1 (City’s Rights Upon a Casualty Event), the City will prioritize its review of any request by Licensee for a substantially similar license on a different pole as a replacement for this License and shall prioritize its review of any request by Licensee for Regulatory Approvals for a temporary facility.

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18.3. Statutory Waiver

The parties understand, acknowledge and agree that this License fully governs their rights and obligations in the event that the License Area becomes damaged or destroyed, and, to the extent applicable, the City and Licensee each hereby waives and releases the provisions in California Civil Code §§ 1932(2) and 1933(4) or any similar Laws.

18.4 Insurance Proceeds

In the event the License Area in whole or in part becomes damaged due to any cause , Licensee shall be entitled to collect all insurance proceeds payable to Licensee; however, the Vertical Infrastructure itself and any related improvements in the License Area, other than Licensee’s Equipment, shall be the City’s fixtures and Licensee’s recovery of any insurance proceeds shall not reduce the proceeds that the City is entitled to collect.

19. CONDEMNATION

This License will automatically ter minate as to the part taken or transferred on the date the permanent taking or transfer occurs. The City will be entitled to any award paid or made in connection with the taking or any sums paid in lieu of such taking. Licensee will have no Claim against t he City for the value of any unexpired Term of this License or otherwise except that Licensee may claim any portion of the award that is specifically allocable to Licensee’s loss or damage to Licensee’s Equipment. The parties understand, acknowledge and agree that this Section 19 is intended to fully govern the parties’ rights and obligations in the event of a permanent taking. Licensee and the City each hereby waives and releases any right to terminate this License in whole or in part under California Code of Civil Procedure §§ 1265.120 and 1265.130 and under any simila r Laws to the extent applicable to this License.

20. ASSIGNMENTS AND OTHER TRANSFERS

20.1. General Restriction

Licensee shall have no right to assign or transfer any right, title or interest, in whole or in part, in, under or through this License without the City’s prior written consent. The City shall not unreasonably withhold its consent to any proposed assignment; provided, however, that the parties acknowledge that the City may reasonably withhold its consent to any proposed assignment under the following circumstances: (1) the proposed assignee lacks the necessary Regulatory Approvals to conduct the Permitted Use or perform all Licensee’s obligations; (2) the City reasonably determines that the proposed assignee lacks the financial qualifications to perform all Licensee’s obligations; (3) Licensee refuses to reimburse the City for the reasonable and documented costs to consider the proposed assignment and/or the proposed assignee , such costs not to exceed Two Thousand Dollars ($2,000.00) ; and/or (4) at any time in which any Default by Licensee remains uncured.

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DRAFT Pole License Agreement

20.2. Permitted Assignments

Notwithstanding Section 20.1, Licensee will be permitted to assign or otherwise transfer this License without the City’s prior consent but with notice to the City, to: (a) an entity that acquires all or substantially all Licensee’s assets in the market in which the City is located (as the “market area” is or may be defined by the FCC); (b) Licensee’s parent; (c) an entity that acquires a controlling interest in Licensee by a change in stock ownership or partnership interest; or ( d) an entity controlled by Licensee (each a “ Permitted Assignment”). Notwithstanding anything in this License to the contrary, a Permitted Assignment will be subject to all the following conditions: (i) the assignee may use the License Area only for the Permitted Use and for no other purpose whatsoever; (ii) the assignee possesses all Regulatory Approvals necessary to lawfully install, operate, and maintain Equipment on the License Area; (iii) Licensee provides the City with notice no later than thirty (30) days following the effective date of such Permitted Assign ment, stating the name and contact information for the assignee; (iv) Licensee was not in default of this License beyond the applicable notice and cure period on the effective date of the Permitted Assignment ; (v) the assignee has assumed , in writing, all of Licensee’s obligations under this License from and after the effective date of the Permitted Assignment. Additionally, within fifteen (15) business days following Licensee’s receipt of the City’s written request, Licensee shall furnish the City with reasonable written evidence that the assignee or transferee has assumed in writing all of Licensee’s obligations under this License from and after the effect date of the Permitted Assignment. If the City chooses to review the Permitted Assignment, Licensee shall be responsible to reimburse the City up to Two Thousand Dollars ($2,000.00) for legal fees and City staff time actually incurred by the City to review the Permitted Assignment. Such reimbursement shall be paid within thirty (30) days after Licensee’s receipt of the City’s invoice accompanied by reasonable evidence of the costs incurred by the City.

20.3. Effect of Assignment

No assignment or transfer by Licensee, consent to assignment by the City, or Permitted Assignment will relieve or release Licensee from any obligation on its part under this License, unless expressly provided in a writing signed by the City. Instead Licensee shall remain jointly and severally liable along with the assignee for all obligation s to be performed by the assignee.

Any assignment or transfer that is not in compliance with this Section 20 will be voidable by the City upon forty-five (45) days’ prior written notice and opportunity cure. The City may issue such notice that an assignment or transfer is voidable at any time and the City’s failure to issue such notice is not a waiver of such right. The City’s receipt or acceptance of any License Fee, Regulatory Fees, Reimbursement Fees , or other payments from a proposed assignee or transferee , or assignee or transferee pursuant to a Permitted Assignment will not be deemed to be the City’s consent to such assignment or Permitted Assignment, as the case may be.

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DRAFT Pole License Agreement

21. DEFAULT

21.1. Defaults and Cure Periods

The parties agree that any failure to perform or observe any term, condition, obligation or other provision in this License shall be a default. For any monetary default, the defaulting party shall have fifteen (15) days after the party’s receipt of written notice from the non - defaulting party to perfect a cure. The defaulting party shall not be entitled to any additional time to cure a monetary default. For any non -monetary default, the defaulting party shall have thirty (30) days after the party’s receipt of written notice from th e non- defaulting party to perfect a cure; provided, however, that for any non -monetary default that cannot reasonably be cured within such thirty (30) day period, the defaulting party shall have additional time as is reasonably necessary to perfect the cure if the defaulting party commences to cure the default within the first thirty (30) days after the party’s receipt of the written notice and diligently pursues the cure to completion. Delay in curing a non- monetary default will be excused on a day for day basis due to any Act of God, event for force majeure, or other circumstance beyond the reasonable control of the defaulting party. To the extent that this License batches multiple Vertical Infrastructures under one license as described in Section 2.1, the City must identify in its written notice to Licensee the specific Vertical Infrastructure(s) that is/are subject to the notice of default.

21.2. Licensee’s Remedies

Except as may be otherwise provided elsewhere in this License, Licensee’s sole remedies for the City’s uncured default will be (1) to terminate the License on thirty (30) days’ prior written notice; and (2) an action for damages subject to the provisions i n Section 17 (Limitations on the City’s Liability).

21.3. City’s Remedies

In addition to all other legal and equitable rights and remedies available to the City, the City will have the following remedies after an uncured default by Licensee:

21.3.1. License Continuation

Without prejudice to its right to other remedies, the City may continue this License with the right to enforce all its rights and remedies, which includes without limitation the r ight to receive the License Fee and other sums as they may become due.

21.3.2. License Termination

If the City determines, in its sole judgment, that Licensee’s default materially impairs the City’s ability to perform its municipal functions or threatens public health, safety or welfare, then the City may terminate this License on written notice to Licensee, provided, however, if the License contains more than one Vertical Infrastructure in the License due to batching of multiple Vertical Infrastructures as permitted under this License, then the License shall

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only terminate as to the Vertical Infrastructure contained in the City’s written notice of default delivered to Licensee under Section 21.1 above, and the License shall remain in full force and effect as to the remaining Vertical Infrastructure(s) that are not identified in the City’s written notice of default delivered to Licensee.

21.3.3. Default Fees

In addition to all other rights and remedies available to the City, the City may require Licensee to pay an additional fee for any and all reasonable and actual costs incurred by the City in connection with a default event to reimburse the City’s reasonable and actual administrative cost to enforce compliance with this License (each a “ Default Fee”) as described on Exhibit C. Licensee shall pay the Def ault Fee within thirty (30) days after Licensee’s receipt of the City’s written demand for reimbursement and reasonable documentation to support such reasonable and actual costs. If Licensee fails to timely pay the Default Fee or cure the underlying default within the applicable cure period in Section 21.1 above , the City shall have the right to assess to Licensee a n additional Default Fee pursuant to a further written notice to Licensee provided that such additional Default Fee may not be assessed more often than one (1) time in any consecutive thirty (30) day period, or until the expiration of the applicable cure period under the License, whichever date is later to occur . Such additional Default Fee shall be due and payable within thirty (30) days of Licensee’s receipt of the additional Default Fee. Licensee’s obligation to pay Default Fees is separate and distinct from the underlying default. Default Fee payments shall not be deemed to cure the underlying default.

21.4. Cumulative Remedies

Except as otherwise provided in this License, all rights and remedies available to the City or Licensee are cumulative, and not a substitute for, any rights or remedies otherwise available to the City or Licensee.

22. TERMINATION

This License may be terminated as follows: (1) by a non -defaulting party upon written notice if the defaulting party remains in default beyond any applicable cure period; or ( 2) by Licensee upon sixty (60) days’ prior written notice to the City for any or no reason. In addition, the Cit y has the right to terminate this License on written notice to Licensee when the City determines, in the City’s sole discretion, that Licensee’s operations on or about the License Area adversely affect or threaten public health and safety or on thirty (30) days’ prior written notice to Licensee when the City determines, in the City’s sole discretion, that Licensee’s operations on or about the License Area materially interfere with the City’s municipal functions or require the City to maintain Vertical Infra structure that the City no longer needs for its own purposes. If the City terminates this License for reasons unrelated to Licensee’s failure to perform under this License, the City shall make good faith effort s to prioritize its review of any request by L icensee for a substantially similar license on a different pole as a replacement for this License.

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23. HAZARDOUS MATERIALS

23.1. Limitations on Hazardous Materials Use

Licensee covenants and agrees that neither Licensee nor its Agents, clients, customers, invitees, guests, tenants, subtenants, licensees, assignees and/or sublicensees will cause or permit any Hazardous Material to be brought upon, kept, used, stored, generated, disposed or Released in, on, under or about the License Area or any other City Property, in whole or part, or transported to or from any City Property in any manner that violates any Environmental Laws; provided, however, that Licensee may use Hazardous Materials in small quantities that are customarily used for routine operation, cleaning and maintenance and so long as all such Hazardous Materials are contained, handled and used in compliance with all Environmental Laws.

23.2. Notice to the City After a Release

Licensee shall immediately notify the City if and when Licensee learns or has reason to believe any Hazardous Material Release has occurred in, on, under or about the License Area or other City Property. Licensee will not be deemed to have assumed liability for any such Release by giving such notice, unless such Release was caused by or arose in connection with Licensee’s or its Agent’s, client’s, customer’s, invitee’s, guest’s, tenant’s, subtenant’s, licensee’s, assignee’s and/or sublicensee’s acts, omissions or negligence.

23.3. Licensee’s Hazardous Material Indemnification Obligations

If Licensee breaches any obligations contained in this Section 23, or if any act, omission or negligence by Licensee or its Agents, clients, customers, invitees, guests, tenants, subtenants, licensees, assignees and/or sublicensees results in any contamination on or about the License Area or other City Property, or in a Hazardous Material Release from, on, about, in or beneath the License Areas or any other City Property, in whole or in part, or any Environmental Law violation, then Licensee, for itself and its successors and assigns, shall indemnify, defend and hold the City and any Indemnified City Parties harmless, from and against any and all Claims (including damages for decrease in value of the License Area or other City Property, the loss or restriction of the use of usable space in the License Area or other City Property and sums paid in settlement of Claims, attorneys’ fees, consultants’ fees, and experts’ fees and related costs) that arises during or after the Term related to or in connection with such Release or violation; provided, however, Licensee shall not be liable for any Claims to the extent such Release or violation was caused directly and exclusively by the City’s sole active negligence or willful misconduct. Licensee’s indemnification obligation includes all costs incurred in connection with any activities required to Investigate and Remediate any Hazar dous Material brought or Released onto the License Area or other City Property by Licensee or its Agents, clients, customers, invitees, guests, tenants, subtenants, licensees, assignees and/or sublicensees, and to restore the License Area or other City Property to its condition prior to such introduction or Release, or to correct any Environmental Law violation. Licensee specifically acknowledges and agrees that it has an immediate and

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independent obligation to defend the City and the other Indemnified City Parties from any Claim that actually or potentially falls within this indemnity provision even if the allegations supporting the Claim are or may be groundless, fraudulent or false, and that said obligation arises at the time such Claim is tendered to Licensee by the Indemnified City Party and continues until the Claim is finally resolved. Without limiting the foregoing, if Licensee or any of its Agents, clients, customers, invitees, guests, tenants, subtenants, licensees, assignees and/or sublicensees cau ses any Hazardous Material Release on, about, in or beneath the License Area or other City Property, then in any such event Licensee shall, immediately, at no expense to any Indemnified City Party, take any and all necessary actions to return the License Area and/or other City Property, as applicable, to the condition existing prior to such Hazardous Materials Release on the License Area or other City Property or otherwise abate the Release in accordance with all Environmental Laws, except to the extent suc h Release was caused by the sole active negligence or willful misconduct of the City, the Indemnified City Parties, or any of them.

Licensee shall afford the City a full opportunity to participate in any discussions with regulatory agencies regarding any s ettlement agreement, cleanup or abatement agreement, consent decree or other compromise or proceeding that involves Hazardous Material Release covered under this Section 23.

24. RULES AND REGULATIONS

At all times throughout the Term, Licensee shall faith fully comply with any and all reasonable rules, regulations and instructions that the City may from time -to-time establish and/or amend with respect to the Permitted Use, the License Area or the Streets.

25. PERFORMANCE BOND

Before the City issues any Regulatory Approval required to commence construction, installation or other work in connection with the Equipment, Licensee shall, at its sole cost and expense, post a performance bond from a surety and in a form acceptable to the City in an amount reasonably necessary to cover the cost to remove the Equipment and all associated improvements and completely restore all affected areas based on a written estimate from a qualified contractor with experience in wireless facilities rem oval. The written estimate must include the cost to remove all the Equipment and all associated improvements, which includes, without limitation, all antennas, radios, batteries, generators, utilities, cabinets, mounts, brackets, hardware, cables, wires, c onduits, structures, shelters, towers, poles, footings and foundations, whether above ground or below ground, constructed or installed in connection with the Equipment, plus the cost to completely restore any areas affected by the removal work to a conditi on that is neat, clean, safe and compliant with applicable laws. In establishing or adjusting the bond amount required under this condition, and in accordance with California Government Code § 65964(a), the City shall take into consideration any informatio n provided by Licensee regarding the cost to remove the Equipment as provided in this Section 25. The performance bond shall expressly survive the Term to the extent required to completely remove the subject Equipment and restore the affected areas in acco rdance with this

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Section 25. This Section 25 shall only apply to the same extent that a substantially similar performance bond requirement is required by the City Council ’s Policy Regulating Small Wireless Facilities, as this Policy may be amended or superseded from time to time.

26. SURRENDER OF LICENSE AREA

Within a reasonable time, as determined by the City Engineer , which absent an emergency as determined by the City Engineer shall be no less than thirty (30) days after Licensee’s receipt of a written demand from the City following the expiration or earlier termination of this License, Licensee shall, at Licensee’s sole cost and expense, remove all Equipment from the License Area and restore all affected areas to a condition compliant with all applicable Laws, in at least as good as the condition existed immediately before such Equipment was installed, reasonable wear and tear excepted, and to the City’s satisfaction. The City may, in its discretion, extend the thirty (30)-day period by written notice to Licensee. In addition to the foregoing, in the event that th is License involves replacement Vertical Infrastructure, Licensee shall, at the City’s sole discretion, replace the Vertical Infrastructure with either (i) a standard City pole, or (ii) the Vertical Infrastructure that existed immediately prior to Licensee’s replacement of same with the replacement Vertical Infrastructure . The City’s acceptance of any replacement Vertical Infrastructure shall be in accordance with Section 6.12. If Licensee fails to timely perform its removal and restoration obligations under this License, then: ( a) Licensee shall remain responsible for all its obligations under this License and liable for all Claims that may arise in connection with the Equipment through and until such Equipment is completely removed and the affected areas are completely restored; ( b) the City shall have the right (but not the obligation) to perform such obligations; ( c) the City shall have the right to store, sell or destroy any Equipment, improvements, personal property or other things installed by Licensee in connection with this License; and ( d) the City’s removal and restoration costs performed on behalf of Licensee shall be deemed to be Reimbursable Fees, and Licensee shall promptly reimburse the City for the same within thirty (30) days of Licensee’s receipt of the City’s invoice accompanied by reasonable evidence of the Reimbursement Fees so incurred by the City . Within ninety (90) days after Licensee completes the removal of Licensee’s Equipment, Licensee shall file a punch list of any remaining improvements not removed, including but not limited to conduits, utility boxes and handholes, as depicted on the most current as built plans and maps on file with the City.

27. INSPECTIONS AND REPORTS

27.1. License Area Inspections

At all reasonable times throughout the Term, the City shall have the right (but not the obligation) to: ( a) inspect all the Equipment, all appurtenant structures and any other equipment or improvements in the Streets constructed, installed, laid, maintained or operated by Licensee pertaining to this License; and (b) evaluate Licensee’s compliance

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with this License and any Regulatory Approval in connection with the Equipment. In the event that any such inspection or evaluation concludes that any Equipment was installed, operated or maintained without all Regulatory Approvals or there is a “Material Defect” in the Equipment installed, operated or maintained pursuant to any Regulatory Approval, then the costs of the City’s inspection or evaluation, including any costs or expenses by any third -party inspectors or consultants , shall be deemed a Regulatory Fee , and Licensee shall promptly reimburse the City for the same within thirty (30) days of Licensee’s receipt of the City’s invoice accompanied by reasonable evidence of the Regulatory Fee so incurred by the City . A “Material Defect” means: (1) a substantial deviation from the Approved Plans; and/or (2) an existing violation of an objective health and safety standard which materially and adversely affects the public health or safety of the general public.

27.2. Records Maintenance and Audits

Licensee shall maintain throughout the Term (and for at least four (4) years after this License expires or terminates) the following records in physical format at Licensee’s Office and in an electronic format: (a) identification information and physical location (e.g., a physical address and/or GPS coordinates) for all Equipment within the City’s territorial and/or jurisdictional boundaries; and (b) a ledger or other similar document that contains the amount, payment date and reason for all sums paid to the City pursuant to this License. To determine whether Licensee has fully and accurately paid all sums payable to the City under this License, if any, the City, or its designee, will have the right (but not the obligation) to inspect, audit and make copies of Licensee’s records at Licensee’s Office during regular business hours on thirty (30) days’ prior written notice to Licensee once every three (3) years, but if the City discovers any material discrepancies in payment by Licensee, the City shall have the right to conduct additional audits within such three (3)-year period. Any City copying of records pursuant to this Section 27.2, shall be subject to the City’s written agreement that the City shall only disclose such records to the extent that the City is required under applicable Laws to make such records available for review by or disclosure to third parties.

27.3. Annual Licensee Build-Plan Forecasts

With Licensee’s first filing of a new application for a License during each year of the Term of this License, Licensee shall submit a non-binding forecast of the number and general areas within the City that Licensee is then forecasting to apply for new applications and modifications to existing Equipment pursuant to then existing Licenses. The forecast shall include to the extent known by Licensee at the time of the filing, the anticipated schedules for all new Equipment and repairs, replacements and modifications to existing Equipment The Parties acknowledge that the non -binding forecast is designed to try and generally assist the City to coordinate its own public improvements and other capital improvement projects by third parties; however, Licensee shall have no liability to the City resulting from any inaccuracies in the information presented in Licensee’s forecast. If Licensee has filed a non-binding forecast with the City in connection with any other License, then Licensee’s

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annual filing requirement of a non-binding forecast for this License shall be deemed fully satisfied.

28. MISCELLANEOUS PROVISIONS

28.1. Notices

Except as may be specifically provided otherwise in this License, all notices, demands or other correspondence required to be given in connection with or pursuant to this License must be written and delivered through (i) an established national courier service that maintains delivery records and confirmations; (ii) hand delivery; or (iii) certified or registered U.S. Mail with prepaid postage and return receipt requested, and addressed as follows:

TO CITY: City of Richmond
450 Civic Center Plaza
Richmond, California 94804
Attn: City Manager

with copies to: City of Richmond
450 Civic Center Plaza
Richmond, California 94804
Attn: City Attorney

City of Richmond
450 Civic Center Plaza
Richmond, California 94804
Attn: IT Director

TO LICENSEE: New Cingular Wireless PCS, LLC
Attn: Tower Asset Group – Lease Administration
Re: AT&T-City of Concord Pole License
Fixed Asset #___________________
1025 Lenox Park Blvd. NE, 3rd Floor
Atlanta, GA 30319

with copies to: New Cingular Wireless PCS, LLC
Attn: Legal Department – Network Operations
Re: AT&T-City of Concord Pole License
Fixed Asset #___________________
208 S. Akard Street
Dallas, TX 75202-4206

All notices , demands or other correspondence in connection with this License will be deemed to have been delivered: ( a) the date delivery is received by personal delivery , certified or registered U.S. Mail with return receipt requested, or overnight delivery; or (b)

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the date an attempt to make delivery fails if a party changes its address without proper notice or refuses to accept delivery after an attempt . Any copies required to be given constitute an administrative step for the parties’ convenience and not actual notice. The parties may change the notice addresses above from time-to-time through written notice to the addresses above or the then-current notice address.

28.2. Waivers

No failure by either the City or Licensee to insist that the other strictly perform a ny obligation, term, covenant or condition under this License or to exercise any right s, powers or remedies in connection with the other party’s failure to strictly perform such obligation, term, covenant or condition no matter how long the failure to insi st on such performance or exercise such rights, powers or remedies , will be deemed to waive any default for non-performance. No behaviors, patterns or customs that may arise between the parties with respect to their performance required under this License will be deemed to waive any rights, powers or remedies the parties’ may have to insist on strict performance. Neither Licensee’s payment nor the City’s or its Agents’ acceptance of any License Fee or any other sums due to the City or its Agents under this License during any such default will be deemed to cure any such default, waive the City’s right to demand material compliance with such obligation, term, covenant or condition or be deemed to be an accord and satisfaction for any Claim the City may have for further or additional sums.

Any express waiver by either the City or Licensee in connection with any default or obligation to perform any provision, term, covenant or condition under this License will: (i) be limited to the specific default or performance for which the express waiver is granted; (ii) not be deemed to be a continuing waiver; and ( iii) not affect any other default or performance no matter how similar or contemporaneous such other default or performance may be. The City’s or Licensee’s conse nt given in any specific instance in connection with or pursuant to this License will not relieve the City or Licensee from the obligation to secure the other’s consent in any other or future specific instances, no matter how similar or contemporaneous the request for consent may be.

28.3. Integration; Amendments

This License constitutes the entire agreement and understanding between the parties, and supersedes any and all prior agreements and understandings, whether written or oral, with respect to the subject matter covered in this License . This License and any default in connection with this License may not be orally changed, waived, discharged, altered, modified, amended or terminated. This License and any default in connection with this License may n ot be changed, waived, discharged, altered, modified, amended or terminated, except by a written instrument signed by both parties.

28.4. Interpretation

The parties acknowledge and agree that the following interpretive rules will be applicable to this License:

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28.4.1. General

Whenever required by the context, the singular includes the plural and vice versa; the masculine gender includes the feminine or neuter genders and vice versa; and defined terms encompass all their correlated forms (e.g., the definition for “indemnify” applies to “indemnity,” “indemnification,” etc.).

28.4.2. Joint and Several Liability

In the event that the City consents to enter into this License with more than one Licensee, which consent the City may withhold or condition in the City’s sole and absolute discretion, the obligations and liabilities imposed on Licensee under this License will be joint and several among the multiple Licensees to this License.

28.4.3. Captions and Other Reference Material

The section captions in this License and the table of contents have been included for the parties’ convenience and reference and neither the captions nor the table of contents in no way define or limit the scope or intent of any provision in this License.

28.4.4. Time

References in this License to “days” mean calendar days, unless specifically provided otherwise. A “business day” means a day other than a Saturday, Sunday or a bank or City holiday. If the last da y in any period to give notice, reply to a notice or to underta ke any other action occurs on a day that is not a business day, then the last day for giving notice, replying to the notice or undertaking any other action will be the next business day. Except as modified in this Section 28.4.4, time is of the essence wit h respect to all provisions in this License for which a definite time for performance is specified.

28.4.5. Inclusive Words and/or Phrases

Inclusive terms and/or phrases, which includes without limitation the terms and/or phrases “including,” “such as” or similar words or phrases that follow any general or specific term, phrase, statement or matter may not be construed to limit the term, phrase, statement or matter to the stated terms, statements or matters, or the listed items that follow the inclusive term or phrase, whether any non -limitation language or disclaimers, such as “including, but not limited to” and/or “including without limitation” are used or not. Rather, the stated term, phrase, statement or matter will be interpreted to refer to all othe r items or matters that could reasonably fall within such term, phrase, statement or matter given its broadest interpretation.

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28.5. Successors and Assigns

Except as may be expressly provided in this License, the conditions, covenants, promises and te rms contained in this License will bind and inure to the benefit of the City and Licensee and their respective successors and assigns.

28.6. Brokers

The parties represent to each other that neither has had any contact, dealings or communications with an y Broker in connection with this License, whose commission, if any, would be paid pursuant to a separate written agreement between such Broker and such party with which such Broker contracted. In the event that any Broker perfects any claim or finder’s fee based upon any such contact, dealings or communications, the party to such written contract with such Broker shall indemnify the other party from all Claims brought by such Broker. This Section 28.6 will survive this License’s expiration or earlier termination.

28.7. Governing Law; Venue

This License must be construed and enforced in accordance with the laws of the State of California and the Richmond City Charter, without regard to the principles of conflicts of law. This License is made, entered and will be performed in the City of Richmond, County of Contra Costa, State of California. Any action concerning this License must be brought and heard in the California Superior Court for the County of Contra Costa.

28.8. Litigation Fees and Costs

In the event the City or Licensee prevails in an action to enforce its rights under this License, the prevailing shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees, incurred in connection with such action.

28.9. Recording

Licensee acknowledges and agrees that: (1) this License affects the City’s personal property and therefore cannot be recorded in any official records; (2) Licensee shall not have the right to record this License, any memorandum or any short -form agreement in relation to this License; and (3) Licensee shall, at Licensee’s sole cost and expense, remove any document or other instrument recorded against the City’s title to any City Property promptly upon the City’s request or demand. In the event that this License affects or is deemed to affect any real property owned by the City, Licensee may not record any document or instrument in connection with this License without the City’s prior written consent, which the City may withhold in the City’s sole and absolute discretion.

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28.10. No Third-Party Beneficiaries

This License is not intended to (and shall not be construed to) give any third party, which includes without limitation Licensee’s customers or any other third -party beneficiaries, any right, title or interest in this License or the real or personal property(ies) that may be affected by the same.

28.11. Survival

All terms, provisions, covenants, conditions and obligations in this License will survive this License’s expiration or termination when, by their sense or context, such provisions, covenants, conditions or obligations: (1) cannot be observed or performed until this License’s expiration or earlier termination; (2) expressly so survive; or (3) reasonably should survive this License’s expiration or earlier termination. Notwithstanding any other provision in this License, the parties ’ rights to enforce any and all indemnities, representations and warranties given or made to the other party under this License or any provision in this License will not be affected by this License’s expiration or termination.

28.12. Severability

If any provision in this License or such provision’s application to any person, entity or circumstances is or held by any court with competent jurisdiction to be invalid or unenforceable: (1) such provision or its application to such person, entity or circumstance will be deemed severed from this License; (2) all ot her provisions in this License or their application to any person, entity or circumstance will not be affected; a nd (3) all ot her provisions in this License or their application to any person, entity or circumstance will be valid and enforceable to the fullest extent permitted by Law, except to the extent that such enforcement would (a) be manifestly unreasonable or manifestly inequitable under all the circumstances or (b) undermine one or both parties’ fundamental purpose in entering this License.

[END OF AGREEMENT – SIGNATURES APPEAR ON NEXT PAGE]

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The City and Licensee executed this License as of the date last written below:

THE CITY: LICENSEE:

City of Richmond, New Cingular Wireless PCS, LLC,
a California municipal corporation a Delaware limited liability company and charter city

By: AT&T Mobility Corporation
Its: Manager

By: __________________________ By: __________________________

Its: City Manager Its: __________________________

Date: __________________________ Date: __________________________

APPROVED AS TO FORM:

By: __________________________
Teresa Stricker
City Attorney

ATTEST:

By: __________________________
Pamela Christian
City Clerk

[END OF SIGNATURES – EXHIBITS AND SCHEDULES APPEAR ON NEXT PAGE]

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SCHEDULE 1

ANNUAL LICENSE FEE

YEAR

OF TERM YEAR ANNUAL

LICENSE FEE
1 2021 $270.00
2 2022 $278.10
3 2023 $286.44
4 2024 $295.04
5 2025 $303.89
6 2026 $313.00
7 2027 $322.39
8 2028 $332.07
9 2029 $342.03
10 2030 $352.29

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SCHEDULE 2

CITY’S ESTIMATED FAIR MARKET LICENSE FEES

YEAR ANNUAL

LICENSE FEE
2021 $1,500.00
2022 $1,545.00
2023 $1,591.35
2024 $1,639.09
2025 $1,688.26
2026 $1,738.91
2027 $1,791.08
2028 $1,844.81
2029 $1,900.16
2030 $1,957.16
2031 $2,015.87
2032 $2,076.35
2033 $2,138.64
2034 $2,202.80
2035 $2,268.88
2036 $2,336.95
2037 $2,407.06
2038 $2,479.27
2039 $2,553.65
2040 $2,630.26

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EXHIBIT A-1

LICENSE AREA

(A site survey that depicts the location of the Vertical Infrastructure within the City and the location of the Licensee’s attachments to such Vertical Infrastructure appears behind this coversheet. Pursuant to Section 6.11 of this License, the City shall have the right to substitute post -construction surveys and/or as-built drawings of the completed facility(ies) in place of the Approved Plans.)

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EXHIBIT A-2

APPROVED PLANS

(Prior to the issuance of a construction permit(s), the Licensee shall tender its Preliminary Plans as this exhibit. After the City issues a construction permit(s), the Approved Plans shall be substituted in place of the Prelimi nary Plans in accordance with Section 6.2 of this License. Pursuant to Section 6.11 of this License, the City shall have the right to substitute post - construction surveys and/or as -built drawings of the
completed facility(ies) in place of the Approved Plans.)

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EXHIBIT B

INSURANCE REQUIREMENTS

In all instances where LICENSEE or its representatives will be licensing or using City of Richmond (City) property for an extended period, the City requires the following insurance requirements and limits.

LICENSEE shall carry and maintain for the duration of the License insurance against claims for injuries to persons or damages to property which may arise from or in connection with the LICENSEE’s, its agents’, representatives’, employees’ or vendor’s use of the License Area. Maintenance of proper insurance coverage is a material element of the License. Failure to maintain or renew coverage or to provide evidence of renewal may be treated by the City as a material default of the License subject to the terms and conditions of Section 21.1 of the License.

LICENSEE agrees that in the event of loss due to any of the perils for which it has agreed to provide Commercial General Liability insurance, LICENSEE shall look solely to its insurance for recovery. LICE NSEE hereby grants to CITY, on behalf of any insurer providing Commercial General Liability insurance to either LICENSEE or CITY with respect to the services of LICENSEE herein, a waiver of any right to subrogation which any such insurer of said LICENSEE m ay acquire against the CITY by virtue of the payment of any loss under such insurance.

Original, signed certificates and separate policy endorsement, including the City as an additional insured by endorsement for commercial general liability coverage with respect to this License, as well as a waiver of subrogation for Workers’ Compensation insurance, shall be received by the City before occupancy may occur. However, failure to do so shall not operate as a waiver of these insurance requirements.

City reserves the right to modify or require additional coverages for specific risk exposures depending on scope of the License once in any consecutive three (3) year period with at least sixty (60) days’ prior written notice to LICENSEE.

Required coverage is deta iled below. The policy limits of coverage shall be made available to the full limits of the policy. The limits stated herein shall not serve to reduce the policy limits of coverage of LICENSEE.

Scope of Insurance – the following forms shall be provided and coverage shall be at least as broad as the following:

1. Insurance Services Office Commercial General Liability coverage (ISO Occurrence Form CG 0001).

2. Insurance Services Office Automobile Liability coverage (ISO Form CA 0001, Code 1, Any Auto).

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3. Original Additional Insured Endorsements for Commercial General Liability (ISO Form CG 20 10 or its equivalent) with primary and non-contributory language.

4. Workers’ Compensation insurance as required by the State of California including Employer’s Liability (for LICENSEE’s with employees).

5. Original Waiver of Subrogation for Workers’ Compensation Insurance (if applicable).

6. Property self -insurance against all risks of loss to LICENSEE improvements, betterments and contents.

Required Coverage Minimum Limits
Workers’ Compensation
and Employers’ Liability
Statutory limits as required by the State of California including $1 million Employers’ Liability per accident, per employee for bodily injury or disease and policy limit. If LICENSEE is self -insured, provide a certificate of
Permission to Self -Insure, signed by the California
Department of Industrial Relations and Self -Insurance. If LICENSEE is a sole proprietor (has no employees) than
LICENSEE must sign “Contractor Release of Liability”
found at:
http://www.ci.richmond.ca.us/index.aspx?nid=61.

Commercial General
Liability
(primary and excess limits
combined)
$2,000,000 per occurrence for bodily injury, personal injury and property damage. If the policy includes a general
aggregate, either the general aggregate shall apply
separately to this project, service or location or the
minimum required aggregate limit shall be t wice the
per occurrence limit ($4 million aggregate).

Policy shall also include coverage for liability arising out of the use and operation of any City-owned or City-furnished equipment used or operated by the LICENSEE, its
employees, agents or others with LICENSEE’s permission.

Policy shall be endorsed to include the City of Richmond as an additional insured by endorsement with respect to this License.

Automobile Liability $1,000,000 per accident for bodily injury and property damage.

Property Self-Insurance –
Only applicable to
licenses of City property
involving LICENSEE
Total value of all LICENSEE improvements,
betterments, and contents.

The City of Richmond shall be named as joint loss payee as its interest may appear. LICENSEE self -insures its property insurance and in satisfaction of the waiver of subrogation requirement LICENSEE will include the City as

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improvements,
betterments and contents
a joint loss payee to the extent of its insurable interest which would have been covere d had LICENSEE
purchased property insurance.

LICENSEE’S Contractors
and Consultants
LICENSEE’S contractors and consultants of every type
that will perform work on the City’s property must meet the insurance requirements listed above (except property
insurance), and the City shall be included by each
contractor and consultant as an additional insured on the commercial general liability coverage. Such coverage shall remain in place for the duration of the contractor’s or consultant’s work on the License Area subject to the
License.

Required Policy
Conditions

Additional Insured
Endorsement

Applicable to Commercial General Liability Coverage.

The City of Richmond, its officers, officials, employees, agents and volunteers are to be covered as insureds for liability caused, in whole or in part, by ownership,
maintenance or use of that part of the License Area
licensed or used by the LICENSEE.

Primary and
Noncontributory
The LICENSEE’s insurance coverage must be primary as
it pertains to the City, its officers, officials, employees, agents and volunteers. Any insurance or self insurance maintained by the City is wholly separate from the
insurance of the LICENSEE, shall be excess of the
LICENSEE’s insurance, and shall not contribute with it.

A. M. Best Rating A:VII or Better. If the A.M. Best Rating falls below the required rating, LI CENSEE must replace coverage
immediately and provide notice to City.

Waiver of Subrogation
Endorsement Form
LICENSEE’s insurer will provide a Waiver of Subrogation in favor of the City for Workers’ Compensation Insurance during the life of this contract.

SAMPLE Endorsements can be found at
http://www.ci.richmond.ca.us/index.aspx?nid=61.

Deductibles and Self -
Insured Retentions
Any self-insured retention must be declared to the City.

LICENSEE is responsible for satisfaction of the deductible and/or self-insured retention for each loss.

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Umbrella/Excess Liability Policies
If an Umbrella or Excess Liability Policy is used to meet the liability limits, coverage shall be as broad as specified for underlying coverages and cover those insured in the underlying policies.

Sublets
Sublicensees shall be subject to all of the requirements stated herein. Sublicensee(s) must furnish to the City for review and approval, separate certificates and endorsements.

LICENSEE agrees to defend and indemnify the City of Richmond for any damage resulting to it from failure of either LICENSEE or any sublicensee(s) to take out or maintain the required insurance policies. The fact that insurance is obtained by LICENSEE, and/or LICENSEE’s Sublicensees, will not be deemed to release or diminish the liability of LICENSEE, including, without limitation, liability under the indemnity provisions of this contract. Damages recoverable by CITY from LICENSEE or any third party will not be limited by the amount of the required insurance coverage.

Verification of Coverage
All original certificates and required endorsements shall be received by the City before LICENSEE may occupy the License Area. In the event that the City has tendered a claim to LICENSEE, or its insurer, or its insurer has denied coverage to the City, LICENSEE (in a local California office) will make available to the City within fifteen (15) days of the City’s written request to LICENSEE, a copy of actual, authentic and applicable insurance policies for review (but not for copying, faxing or otherwise reproducin g any part of any policy or other insurance correspondence), subject to the City first executing LICENSEE's standard non-disclosure agreement. The policy review is limited to no more than three (3) days during a consecutive six (6) month period and must be conducted during LICENSEE’s normal business hours while the City’s representative is accompanied by a LICENSEE Risk Management professional. Upon completion of review no copies will be made and all policies will be returned to LICENSEE’s Corporate Risk Management Department.

Original insurance certificates and required policy endorsements shall be mailed or delivered to the Designated Project Manager for the City of Richmond.

Insurance certificates and required endorsements may be faxed to the Designated Project Manager. However, LICENSEE must mail the original certificates and required endorsements to Designated Project Manager once faxed.

Continuous Coverage
LICENSEE shall maintain the required insurance for the life of the License.

If LICENSEE’s use or occupancy of the License Area extends beyond the expiration dates of the required insurance policies initially approved by the City, LICENSEE must provide

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updated certificates and required endorsements indicating that the required coverage, terms and conditions are still in place. Renewal certificates and updated endorsements shall be mailed to the Designated Project Manager.

Cancellation
LICENSEE shall provide at leas t thirty (30) days’ prior written notice to the City of cancellation or nonrenewal of any required coverage that is not replaced.

Reporting Requirements

Any failure to comply with reporting or other provisions of the policies including breaches of warr anties shall not affect coverage provided to the City, its officers, officials, employees or volunteers.

Consistent with Public Policy
The insuring provisions, insofar as they may be judged to be against public policy shall be void and unenforceable only to the minimum extent necessary so that the remaining terms and provisions herein may be consistent with public policy and thus enforceable.

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EXHIBIT C

DEFAULT FEE SCHEDULE

DEFAULT FEE SCHEDULE

VIOLATION INITIAL NOTICE EACH FOLLOW-UP
NOTICE*
unauthorized installations $1,000 $1,500
failure to make required
repairs
$300 $350
access violations $300 $350
insurance violations $300 $350

*By mutual agreement, the City shall not issue a follow-up Default Fee notice to Licensee more than one (1) time in any consecutive thirty (30) day period, or until the expiration of the applicable cure period under the License, whichever date is later to occur.

Federal Communications Commission FCC 18-133
1 Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of
Accelerating Wireless Broadband Deployment by
Removing Barriers to Infrastructure Investment
Accelerating Wireline Broadband Deployment by
Removing Barriers to Infrastructure Investment
)
)
)
)
)
)
)
WT Docket No. 17-79
WC Docket No. 17-84

DECLARATORY RULING AND THIRD REPORT AND ORDER
Adopted: September 26, 2018 Released: September 27, 2018 By the Commission: Chairman Pai and Commissioners O’Rielly and Carr issuing separate statements; Commissioner Rosenworcel approving in part, dissenting in part and issuing a statement.

TABLE OF CONTENTS
Heading Paragraph #
I. INTRODUCTION...................................................................................................................................1 II. BACKGROUND...................................................................................................................................14 A. Legal Background...........................................................................................................................14 B. The Need for Commission Action ..................................................................................................23 III. DECLARATORY RULING .................................................................................................................30 A. Overview of the Section 253 and Section 332(c)(7) Framework Relevant to Small Wireless Facilities Deployment ......................................................................................................34 B. State and Local Fees .......................................................................................................................43 C. Other State and Local Requirements that Govern Small Facilities Deployment............................81 D. States and Localities Act in Their Regulatory Capacities When Authorizing and Setting Terms for Wireless Infrastructure Deployment in Public Rights of Way.......................................92 E. Responses to Challenges to Our Interpretive Authority and Other Arguments..............................98 IV. THIRD REPORT AND ORDER ........................................................................................................103 A. New Shot Clocks for Small Wireless Facility Deployments ........................................................104

1. Two New Section 332 Shot Clocks for Deployment of Small Wireless Facilities ................105

2. Batched Applications for Small Wireless Facilities...............................................................113 B. New Remedy for Violations of the Small Wireless Facilities Shot Clocks..................................116 C. Clarification of Issues Related to All Section 332 Shot Clocks ...................................................132

1. Authorizations Subject to the “Reasonable Period of Time” Provision of Section 332(c)(7)(B)(ii).......................................................................................................................132

2. Codification of Section 332 Shot Clocks ...............................................................................138

3. Collocations on Structures Not Previously Zoned for Wireless Use .....................................140

4. When Shot Clocks Start and Incomplete Applications ..........................................................141 V. PROCEDURAL MATTERS...............................................................................................................148 VI. ORDERING CLAUSES......................................................................................................................151 APPENDIX A -- Final Rules
APPENDIX B -- Comments and Reply Comments
APPENDIX C -- Final Regulatory Flexibility Analysis
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Federal Communications Commission FCC 18-133
I. INTRODUCTION

1. America is in the midst of a transition to the next generation of wireless services, known as 5G. These new services can unleash a new wave of entrepreneurship, innovation, and economic opportunity for communities across the country. The FCC is committed to doing our part to help ensure the United States wins the global race to 5G to the benefit of all Americans. Today’s action is the next step in the FCC’s ongoing efforts to remove regulatory barriers that would unlawfully inhibit the deployment of infrastructure necessary to support these new services. We proceed by drawing on the balanced and commonsense ideas generated by many of our state and local partners in their own small cell bills.

2. Supporting the deployment of 5G and other next-generation wireless services through smart infrastructure policy is critical. Indeed, upgrading to these new services will, in many ways, represent a more fundamental change than the transition to prior generations of wireless service. 5G can enable increased competition for a range of services—including broadband—support new healthcare and Internet of Things applications, speed the transition to life-saving connected car technologies, and create jobs. It is estimated that wireless providers will invest $275 billion1 over the next decade in next- generation wireless infrastructure deployments, which should generate an expected three million new jobs and boost our nation’s GDP by half a trillion dollars.2 Moving quickly to enable this transition is important, as a new report forecasts that speeding 5G infrastructure deployment by even one year would unleash an additional $100 billion to the U.S. economy.3 Removing barriers can also ensure that every community gets a fair shot at these deployments and the opportunities they enable.

3. The challenge for policymakers is that the deployment of these new networks will look different than the 3G and 4G deployments of the past. Over the last few years, providers have been increasingly looking to densify their networks with new small cell deployments that have antennas often no larger than a small backpack. From a regulatory perspective, these raise different issues than the construction of large, 200-foot towers that marked the 3G and 4G deployments of the past. Indeed, estimates predict that upwards of 80 percent of all new deployments will be small cells going forward.4 To support advanced 4G or 5G offerings, providers must build out small cells at a faster pace and at a far greater density of deployment than before.

4. To date, regulatory obstacles have threatened the widespread deployment of these new services and, in turn, U.S. leadership in 5G. The FCC has lifted some of those barriers, including our decision in March 2018, which excluded small cells from some of the federal review procedures designed for those larger, 200-foot towers. But as the record here shows, the FCC must continue to act in partnership with our state and local leaders that are adopting forward leaning policies.

5. Many states and localities have acted to update and modernize their approaches to small cell deployments. They are working to promote deployment and balance the needs of their communities.

At the same time, the record shows that problems remain. In fact, many state and local officials have urged the FCC to continue our efforts in this proceeding and adopt additional reforms. Indeed, we have 1 See Accenture Strategy, Accelerating Future Economic Value from the Wireless Industry at 2 (2018) (Accelerating Future Economic Value Report), https://www.ctia.org/news/accelerating-future-economic-value-from-the-wireless- industry, attached to Letter from Scott K. Bergmann, Senior Vice Pres., Reg. Affairs, CTIA to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 (filed July 19, 2018). 2 See Accenture Strategy, Smart Cities: How 5G Can Help Municipalities Become Vibrant Smart Cities, (2017) http://www.ctia.org/docs/default-source/default-document-library/how-5g-can-help-municipalities-become- vibrantsmart-cities-accenture.pdf; attached to Letter from Scott Bergmann, Vice Pres. Reg. Affairs, CTIA to Marlene H. Dortch, Secretary, FCC, WT Docket No. 16-421, (filed Jan. 13, 2017). 3 Accelerating Future Economic Value Report at 2.
4 Letter from John T. Scott, Counsel for Mobilitie, LLC, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17- 79 at 2-3 (filed Sept. 12, 2018).
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Federal Communications Commission FCC 18-133
heard from a number of local officials that the excessive fees or other costs associated with deploying small scale wireless infrastructure in large or otherwise “must serve” cities are materially inhibiting the buildout of wireless services in their own communities.

6. We thus find that now is the appropriate time to move forward with an approach geared at the conduct that threatens to limit the deployment of 5G services. In reaching our decision today, we have benefited from the input provided by a range of stakeholders, including state and local elected officials.5 FCC leadership spent substantial time over the course of this proceeding meeting directly with local elected officials in their jurisdictions. In light of those discussions and our consideration of the record here, we reach a decision today that does not preempt nearly any of the provisions passed in recent state-level small cell bills. We have reached a balanced, commonsense approach, rather than adopting a one-size-fits-all regime. This ensures that state and local elected officials will continue to play a key role in reviewing and promoting the deployment of wireless infrastructure in their communities.

7. Although many states and localities support our efforts, we acknowledge that there are others who advocated for different approaches.6 We have carefully considered these views, but nevertheless find our actions here necessary and fully supported. By building on state and local ideas, today’s action boosts the United States’ standing in the race to 5G. According to a study submitted by Corning, our action would eliminate around $2 billion in unnecessary costs, which would stimulate around $2.4 billion of additional buildouts.7 And that study shows that such new service would be 5 See, e.g., Letter from Brian D. Hill, Ohio State Representative, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79 at 1-2 (filed Aug. 31, 2018) (“While the FCC and the Ohio Legislature have worked to reduce the timeline for 5G deployment, the same cannot be said for all local and state governments. Regulations written in a different era continue to dictate the regulatory process for 5G infrastructure”); Letter from Maureen Davey, Commissioner, Stillwater County, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79 at 1-2 (filed Sept. 18, 2018) (“[T]he Commission’s actions to lower regulatory barriers can enable more capital spending to flow to areas like ours. Reducing fees and shortening review times in urban areas, thereby lowering the cost of deployment in such areas, can promote speedier deployment across all of America.”); Letter from Board of County Commissioners, Yellowstone County, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17- 79 at 1-2 (filed Sept. 21, 2018) (“Reducing these regulatory barriers by setting guidelines on fees, siting requirements and review timeframes, will promote investment including rural areas like ours.”); Letter from Board of Commissioners, Harney County, Oregon, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79 at 1-2 (filed Sept. 5, 2018) (“By taking action to speed and reduce the costs of deployment across the country, and create a more uniform regulatory framework, the Commission will lower the cost of deployment, enabling more investment in both urban and rural communities.”); Letter from Niraj J. Antani, Ohio State Representative, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79 at 1-2 (filed Sept. 4, 2018) (“[T]o truly expedite the small cell deployment process, broader government action is needed on more than just the state level.”); Letter from Michael C. Taylor, Mayor, City of Sterling Heights, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79 at 1-2 (filed Aug. 30, 2018) (“[T]here are significant, tangible benefits to having a nation-wide rule that promotes the deployment of next-generation wireless access without concern that excessive regulation or small cell siting fees slows down the process.”).
6 See, e.g., Letter from Linda Morse, Mayor, City of Manhattan, KS to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 1-2 (filed Sept. 13, 2018) (City of Manhattan, KS Sept. 13, 2018 Ex Parte Letter); Letter from Ronny Berdugo, Legislative Representative, League of California Cities to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 1-2 (filed Sept. 18, 2018) (Ronny Berdugo Sept. 18, 2018 Ex Parte Letter); Letter from Damon Connolly, Marin County Board of Supervisors to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 1-2 (filed Sept. 17, 2018) (Damon Connolly Sept. 17, 2018 Ex Parte Letter). 7 See Letter from Thomas J. Navin, Counsel to Corning, Inc., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 1, Attach. A at 2-3 (filed Sept. 5, 2018) (Corning Sept. 5, 2018 Ex Parte Letter). 9090

Federal Communications Commission FCC 18-133
deployed where it is needed most: 97 percent of new deployments would be in rural and suburban communities that otherwise would be on the wrong side of the digital divide.8

8. The FCC will keep pressing ahead to ensure that every community in the country gets a fair shot at the opportunity that next-generation wireless services can enable. As detailed in the sections that follow, we do so by taking the following steps.

9. In the Declaratory Ruling, we note that a number of appellate courts have articulated different and often conflicting views regarding the scope and nature of the limits Congress imposed on state and local governments through Sections 253 and 332. We thus address and reconcile this split in authorities by taking three main actions.

10. First, we express our agreement with the U.S. Courts of Appeals for the First, Second, and Tenth Circuits that the “materially inhibit” standard articulated in 1997 by the Clinton-era FCC’s California Payphone decision is the appropriate standard for determining whether a state or local law operates as a prohibition or effective prohibition within the meaning of Sections 253 and 332.

11. Second, we note, as numerous courts and prior FCC cases have recognized, that state and local fees and other charges associated with the deployment of wireless infrastructure can unlawfully prohibit the provision of service. At the same time, courts have articulated various approaches to determining the types of fees that run afoul of Congress’s limits in Sections 253 and 332. We thus clarify the particular standard that governs the fees and charges that violate Sections 253 and 332 when it comes to the Small Wireless Facilities at issue in this decision.9 Namely, fees are only permitted to the extent that they are nondiscriminatory and represent a reasonable approximation of the locality’s reasonable costs. In this section, we also identify specific fee levels for the deployment of Small Wireless Facilities that presumptively comply with this standard. We do so to help avoid unnecessary litigation over fees.

12. Third, we focus on a subset of other, non-fee provisions of local law that could also operate as prohibitions on service. We do so in particular by addressing state and local consideration of aesthetic concerns in the deployment of Small Wireless Facilities, recognizing that certain reasonable aesthetic considerations do not run afoul of Sections 253 and 332. This responds in particular to many concerns we heard from state and local governments about deployments in historic districts. 8 Id.
9 “Small Wireless Facilities,” as used herein and consistent with section 1.1312(e)(2), encompasses facilities that meet the following conditions:
(1) The facilities—
(i) are mounted on structures 50 feet or less in height including their antennas as defined in section

1.1320(d), or
(ii) are mounted on structures no more than 10 percent taller than other adjacent structures, or (iii) do not extend existing structures on which they are located to a height of more than 50 feet or by more than 10 percent, whichever is greater;
(2) Each antenna associated with the deployment, excluding associated antenna equipment (as defined in the definition of antenna in section 1.1320(d)), is no more than three cubic feet in volume; (3) All other wireless equipment associated with the structure, including the wireless equipment associated with the antenna and any pre-existing associated equipment on the structure, is no more than 28 cubic feet in volume;
(4) The facilities do not require antenna structure registration under part 17 of this chapter; (5) The facilities are not located on Tribal lands, as defined under 36 CFR 800.16(x); and (6) The facilities do not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in section 1.1307(b). 9091

Federal Communications Commission FCC 18-133

13. Next, we issue a Report and Order that addresses the “shot clocks” governing the review of wireless infrastructure deployments. We take three main steps in this regard. First, we create a new set of shot clocks tailored to support the deployment of Small Wireless Facilities. In particular, we read Sections 253 and 332 as allowing 60 days for reviewing the application for attachment of a Small Wireless Facility using an existing structure and 90 days for the review of an application for attachment of a small wireless facility using a new structure. Second, while we do not adopt a “deemed granted” remedy for violations of our new shot clocks, we clarify that failing to issue a decision up or down during this time period is not simply a “failure to act” within the meaning of applicable law. Rather, missing the deadline also constitutes a presumptive prohibition. We would thus expect any locality that misses the deadline to issue any necessary permits or authorizations without further delay. We also anticipate that a provider would have a strong case for quickly obtaining an injunction from a court that compels the issuance of all permits in these types of cases. Third, we clarify a number of issues that are relevant to all of the FCC’s shot clocks, including the types of authorizations subject to these time periods.

II. BACKGROUND
A. Legal Background

14. In the Telecommunications Act of 1996 (the 1996 Act), Congress enacted sweeping new provisions intended to facilitate the deployment of telecommunications infrastructure. As U.S. Courts of Appeals have stated, “[t]he [1996] Act ‘represents a dramatic shift in the nature of telecommunications regulation.’”10 The Senate floor manager, Senator Larry Pressler, stated that “[t]his is the most comprehensive deregulation of the telecommunications industry in history.”11 Indeed, the purpose of the 1996 Act is to “provide for a pro-competitive, deregulatory national policy framework . . . by opening all telecommunications markets to competition.”12 The conference report on the 1996 Act similarly indicates that Congress “intended to remove all barriers to entry in the provision of telecommunications services.”13 The 1996 Act thus makes clear Congress’s commitment to a competitive telecommunications marketplace unhindered by unnecessary regulations, explicitly directing the FCC to “promote competition and reduce regulation in order to secure lower prices and higher quality services for American telecommunications consumers and encourage the rapid deployment of new telecommunications technologies.”14

15. Several provisions of the 1996 Act speak directly to Congress’s determination that certain state and local regulations are unlawful. Section 253(a) provides that “[n]o State or local statute or regulation, or other State or local legal requirement, may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”15 Courts have observed that Section 253 represents a “broad preemption of laws that inhibit competition.”16

16. The Commission has issued several rulings interpreting and providing guidance regarding the language Congress used in Section 253. For instance, in the 1997 California Payphone decision, the Commission, under the leadership of then Chairman William Kennard, stated that, in determining whether a state or local law has the effect of prohibiting the provision of telecommunications services, it 10 Sprint Telephony PCS LP v. County of San Diego, 543 F.3d 571, 575 (9th Cir. 2008) (en banc) (County of San Diego) (quoting Cablevision of Boston, Inc. v. Pub. Improvement Comm’n, 184 F.3d 88, 97 (1st Cir. 1999)). 11 141 Cong. Rec. S8197 (daily ed. June 12, 1995).
12 H.R. Conf. Rep. No. 104–458, at 113 (1996), reprinted in 1996 U.S.C.C.A.N. (100 Stat. 5) 124. 13 S. Rep. No. 104-230, at 126 (1996) (Conf. Rep.).
14 Preamble, Telecommunications Act of 1996, P.L. 104-104, 100 Stat. 56 (1996); see also AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 371 (1999) (noting that the 1996 Act “fundamentally restructures local telephone markets” to facilitate market entry); Reno v. American Civil Liberties Union, 521 U.S. 844, 857-58 (1997) (“The Telecommunications Act was an unusually important legislative enactment . . . designed to promote competition.”). 15 47 U.S.C. § 253(a).
16 Puerto Rico Tel. Co. v. Telecomm. Reg. Bd. of Puerto Rico, 189 F.3d 1, 11 n.7 (1st Cir. 1999). 9092

Federal Communications Commission FCC 18-133
“consider[s] whether the ordinance materially inhibits or limits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.”17

17. Similar to Section 253, Congress specified in Section 332(c)(7) that “[t]he regulation of the placement, construction, and modification of personal wireless service facilities by any State or local government or instrumentality thereof—(I) shall not unreasonably discriminate among providers of functionally equivalent services; and (II) shall not prohibit or have the effect of prohibiting the provision of personal wireless services.”18 Clause (B)(ii) of that section further provides that “[a] State or local government or instrumentality thereof shall act on any request for authorization to place, construct, or modify personal wireless service facilities within a reasonable period of time after the request is duly filed with such government or instrumentality, taking into account the nature and scope of such request.”19 Section 332(c)(7) generally preserves state and local authority over the “placement, construction, and modification of personal wireless service facilities” but with the important limitations described above.20 Section 332(c)(7) also sets forth a judicial remedy, stating that “[a]ny person adversely affected by any final action or failure to act by a State or local government” that is inconsistent with the requirements of Section 332(c)(7) “may, within 30 days after such action or failure to act, commence an action in any court of competent jurisdiction.”21 The provision further directs the court to “decide such action on an expedited basis.”22

18. The Commission has previously interpreted the language Congress used and the limits it imposed on state and local authority in Section 332. For instance, in interpreting Section 332(c)(7)(B)(i)(II), the Commission has found that “a State or local government that denies an application for personal wireless service facilities siting solely because ‘one or more carriers serve a given geographic market’ has engaged in unlawful regulation that ‘prohibits or ha[s] the effect of prohibiting the provision of personal wireless services,’ within the meaning of Section 332(c)(7)(B)(i)(II).”23 In adopting this interpretation, the Commission explained that its “construction of the provision achieves a balance that is most consistent with the relevant goals of the Communications Act” and its understanding that “[i]n promoting the construction of nationwide wireless networks by multiple carriers, Congress sought ultimately to improve service quality and lower prices for consumers.”24 The Commission also noted that an alternative interpretation would “diminish the service provided to [a wireless provider’s] customers.”25 17 California Payphone Ass’n, 12 FCC Rcd 14191, 14206, para. 31 (1997) (California Payphone). 18 47 U.S.C. § 332(c)(7)(B)(i).
19 47 U.S.C § 332(c)(7)(B)(ii).
20 47 U.S.C. § 332(c)(7)(A) (stating that, “[e]xcept as provided in this paragraph, nothing in this chapter shall limit or affect the authority of a State or local government or instrumentality thereof over decisions regarding the placement, construction, and modification of personal wireless services facilities”). The statute defines “personal wireless services” to include CMRS, unlicensed wireless services, and common carrier wireless exchange access services. 47 U.S.C. § 332(c)(7)(C). In 2012, Congress expressly modified this preservation of local authority by enacting Section 6409(a), which requires local governments to approve certain types of facilities siting applications “[n]otwithstanding section 704 of the Telecommunications Act of 1996 [codified in substantial part as Section 332(c)(7)] . . . or any other provision of law.” Spectrum Act, 47 U.S.C. § 6409(a)(1). 21 47 U.S.C. § 332(c)(7)(B)(v).
22 47 U.S.C. § 332(c)(7)(B)(v).
23 Petition for Declaratory Ruling to Clarify Provisions of Section 332(c)(7) to Ensure Timely Siting Review, Declaratory Ruling, 24 FCC Rcd 13994, 14016, para. 56 (2009) (2009 Declaratory Ruling), aff’d, City of Arlington v. FCC, 668 F.3d 229 (5th Cir. 2012) (City of Arlington), aff’d, 569 U.S. 290 (2013). 24 2009 Declaratory Ruling, 24 RCC Rcd at 14017-18, para. 61. 25 Id.
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19. In the 2009 Declaratory Ruling, the Commission acted to speed the deployment of then- new 4G services and concluded that, “[g]iven the evidence of unreasonable delays [in siting decisions] and the public interest in avoiding such delays,” it should offer guidance regarding the meaning of the statutory phrases “reasonable period of time” and “failure to act” “in order to clarify when an adversely affected service provider may take a dilatory State or local government to court.”26 The Commission interpreted “reasonable period of time” under Section 332(c)(7)(B)(ii) to be 90 days for processing collocation applications and 150 days for processing applications other than collocations. 27 The Commission further determined that failure to meet the applicable time frame enables an applicant to pursue judicial relief within the next 30 days.28 In litigation involving the 90-day and 150-day time frames, the locality may attempt to “rebut the presumption that the established timeframes are reasonable.”29 If the agency fails to make such a showing, it may face “issuance of an injunction granting the application.”30 In its 2014 Wireless Infrastructure Order, 31 the Commission clarified that the time frames under Section 332(c)(7) are presumptively reasonable and begin to run when the application is submitted, not when it is found to be complete by a siting authority.32

20. In 2012, Congress adopted Section 6409 of the Middle Class Tax Relief and Job Creation Act (the Spectrum Act), which provides further evidence of Congressional intent to limit state and local laws that operate as barriers to infrastructure deployment. It states that, “[n]otwithstanding section 704 of the Telecommunications Act of 1996 [codified as 47 U.S.C. § 332(c)(7)] or any other provision of law, a State or local government may not deny, and shall approve, any eligible facilities request for a modification of an existing wireless tower or base station that does not substantially change the physical dimensions of such tower or base station.”33 Subsection (a)(2) defines the term “eligible facilities request” as any request for modification of an existing wireless tower or base station that involves (a) collocation of new transmission equipment; (b) removal of transmission equipment; or (c) replacement of transmission equipment.34 In implementing Section 6409 and in an effort to “advance[e] Congress’s goal 26 Id. at 14008, para. 37; see also id. at 14029 (Statement of Chairman Julius Genachowski) (“[T]he rules we adopt today . . . will have an important effect in speeding up wireless carriers’ ability to build new 4G networks--which will in turn expand and improve the range of wireless choices available to American consumers.”). 27 Id. at 14012, para. 45.
28 Id. at 14005, 14012, paras. 32, 45.
29 Id. at 14008-10, 14013-14, paras. 37-42, 49-50.
30 Id. at 14009, para. 38; see also City of Rancho Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005) (proper remedies for Section 332(c)(7) violations include injunctions but not constitutional tort damages). 31 Specifically, the Commission determined that once a siting application is considered complete for purposes of triggering the Section 332(c)(7) shot clocks, those shot clocks run regardless of any moratoria imposed by state or local governments, and the shot clocks apply to DAS and small-cell deployments so long as they are or will be used to provide “personal wireless services.” Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, Report & Order, 29 FCC Rcd 12865, 12966, 12973, paras. 243, 270, (2014) (2014 Wireless Infrastructure Order), aff’d, Montgomery County v. FCC, 811 F.3d 121 (4th Cir. 2015) (Montgomery County); see also Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Notice of Proposed Rulemaking and Notice of Inquiry, 32 FCC Rcd 3330, 3339, para. 22 (2017) (Wireless Infrastructure NPRM/NOI); Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, Third Report and Order and Declaratory Ruling, WC Docket No. 17-84 and WT Docket No. 17-79, FCC 18-111, paras. 140-68 (rel. Aug. 3, 2018) (Moratoria Declaratory Ruling). 32 2014 Wireless Infrastructure Order, 29 FCC Rcd at 12970, para. 258. (“Accordingly, to the extent municipalities have interpreted the clock to begin running only after a determination of completeness, that interpretation is incorrect.”).
33 Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. No. 112-96 § 6409(a)(2), 126 Stat. 156 (2012). 34 Id.
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of facilitating rapid deployment,”35 the Commission adopted rules to expedite the processing of eligible facilities requests, including documentation requirements and a 60-day period for states and localities to review such requests.36 The Commission further determined that a “deemed granted” remedy was necessary for cases in which the reviewing authority fails to issue a decision within the 60-day period in order to “ensur[e] rapid deployment of commercial and public safety wireless broadband services.”37 The Fourth Circuit, affirming that remedy, explained that “[f]unctionally, what has occurred here is that the FCC—pursuant to properly delegated Congressional authority—has preempted state regulation of wireless towers.”38

21. Consistent with these broad federal mandates, courts have recognized that the Commission has authority to interpret Sections 253 and 332 of the Act to further elucidate what types of state and local legal requirements run afoul of the statutory parameters Congress established.39 For instance, the Fifth Circuit affirmed the 2009 Declaratory Ruling in City of Arlington. The court concluded that the Commission possessed the “authority to establish the 90– and 150–day time frames” and that its decision was not arbitrary and capricious.40 More generally, as the agency charged with administering the Communications Act, the Commission has the authority, responsibility, and expert judgement to issue interpretations of the statutory language and to adopt implementing regulations that clarify and specify the scope and effect of the Act. Such interpretations are particularly appropriate where the statutory language is ambiguous, or the subject matter is “technical, complex, and dynamic,” as it is in the Communications Act, as recognized by the Supreme Court.41 Here, the Commission has ample experience monitoring and regulating the telecommunications sector. It is well-positioned, in light of this experience and the record in this proceeding, to issue a clarifying interpretation of Sections 253 and 332(c)(7) that accounts both for the changing needs of a dynamic wireless sector that is increasingly reliant on Small Wireless Facilities and for state and local oversight that does not materially inhibit wireless deployment.

22. The congressional and FCC decisions described above point to consistent federal action, particularly when faced with changes in technology, to ensure that our country’s approach to wireless infrastructure deployment promotes buildout of the facilities needed to provide Americans with next- generation services. Consistent with that long-standing approach, in the 2017 Wireless Infrastructure NPRM/NOI, the Commission sought comment on whether the FCC should again update its approach to infrastructure deployment to ensure that regulations are not operating as prohibitions in violation of Congress’s decisions and federal policy.42 In August 2018, the Commission concluded that state and local moratoria on telecommunications services and facilities deployment are barred by Section 253(a).43 35 2014 Wireless Infrastructure Order, 29 FCC Rcd at 12872, para. 15. 36 Id. at 12922, 12956-57, paras. 135, 214-15.
37 Id. at 12961-62, paras. 226, 228.
38 Montgomery County, 811 F.3d at 129.
39 See, e.g., City of Arlington, 668 F.3d at 253-54; County of San Diego, 543 F.3d at 578; RT Commc’ns., Inc. v.

FCC, 201 F.3d 1264, 1268 (10th Cir. 2000).
40 City of Arlington, 668 F.3d at 254, 260-61.
41 Nat’l Cable & Telecomm. Ass’n v. Gulf Power Co., 534 U.S. 327, 328 (2002); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (recognizing “agency’s greater familiarity with the ever-changing facts and circumstances surrounding the subjects regulated”); see also, e.g., Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 983-986 (2005) (Commission’s interpretation of an ambiguous statutory provision overrides earlier court decisions interpreting the same provision). 42 See generally Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3332-39, paras. 4-22. 43 See generally Moratoria Declaratory Ruling, FCC 18-111, paras. 140-68. 9095

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B. The Need for Commission Action

23. In response to the opportunities presented by offering new wireless services, and the problems facing providers that seek to deploy networks to do so, we find it necessary and appropriate to exercise our authority to interpret the Act and clarify the preemptive scope that Congress intended. The introduction of advanced wireless services has already revolutionized the way Americans communicate and transformed the U.S. economy. Indeed, the FCC’s most recent wireless competition report indicates that American demand for wireless services continues to grow exponentially. It has been reported that monthly data usage per smartphone subscriber rose to an average of 3.9 gigabytes per subscriber per month, an increase of approximately 39 percent from year-end 2015 to year-end 2016.44 As more Americans use more wireless services, demand for new technologies, coverage and capacity will necessarily increase, making it critical that the deployment of wireless infrastructure, particularly Small Wireless Facilities, not be stymied by unreasonable state and local requirements.

24. 5G wireless services, in particular, will transform the U.S. economy through increased use of high-bandwidth and low-latency applications and through the growth of the Internet of Things.45 While the existing wireless infrastructure in the U.S. was erected primarily using macro cells with relatively large antennas and towers, wireless networks increasingly have required the deployment of small cell systems to support increased usage and capacity. We expect this trend to increase with next- generation networks, as demand continues to grow, and providers deploy 5G service across the nation.46 It is precisely “[b]ecause providers will need to deploy large numbers of wireless cell sites to meet the country’s wireless broadband needs and implement next-generation technologies” that the Commission has acknowledged “an urgent need to remove any unnecessary barriers to such deployment, whether caused by Federal law, Commission processes, local and State reviews, or otherwise.”47 As explained below, the need to site so many more 5G-capable nodes leaves providers’ deployment plans and the underlying economics of those plans vulnerable to increased per site delays and costs.

25. Some states and local governments have acted to facilitate the deployment of 5G and other next-gen infrastructure, looking to bring greater connectivity to their communities through forward- looking policies. Leaders in these states are working hard to meet the needs of their communities and balance often competing interests. At the same time, outlier conduct persists. The record here suggests that the legal requirements in place in other state and local jurisdictions are materially impeding that deployment in various ways.48 Crown Castle, for example, describes “excessive and unreasonable” “fees 44 See Implementation of Section 6002(b) of the Omnibus Budget Reconciliation Act of 1993 Annual Report and Analysis of Competitive Market Conditions with Respect to Mobile Wireless, Including Commercial Mobile Services, Twentieth Report, 32 FCC Rcd 8968, 8972, para. 20 (2017) (Twentieth Wireless Competition Report). 45 See Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3331, para. 1. 46 See, e.g., Letter from Brett Haan, Principal, Deloitte Consulting, U.S., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 2 (filed Sept. 17, 2018) (“Significant investment in new network infrastructure is needed to deploy 5G networks at-scale in the United States. 5G’s speed and coverage capabilities rely on network densification, which requires the addition of towers and small cells to the network. . . . This requires carriers to add 3 to 10 times the number of existing sites to their networks. Most of this additional infrastructure will likely be built with small cells that use lampposts, utility phones, or other structures of similar size able to host smaller, less obtrusive radios required to build a densified network.” (citation omitted)); see also Deloitte LLP, 5G: The Chance to Lead for a Decade (2018) (Deloitte 5G Paper), available at https://www2.deloitte.com/content/dam/Deloitte/us/Documents/technology-media-telecommunications/us-tmt- 5gdeployment-imperative.pdf.
47 See Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3331, para. 2. 48 See, e.g., Letter from Henry Hultquist, AT&T, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 1 (filed Aug. 10, 2018) (“Unfortunately, many municipalities are unable, unwilling, or do not make it a priority to act on applications within the shot clock period.” ); Letter from Keith Buell, Sprint, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 1-2 (filed Aug. 13, 2018) (Sprint Aug. 13, 2018 Ex Parte Letter); Letter from Katherine R. Saunders, Verizon, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 2 (filed June 21, 9096

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to access the [rights-of-way] that are completely unrelated to their maintenance or management.” It also points to barriers to market entry “for independent network and telecommunications service providers,” including municipalities that “restric[t] access to the [right-of-way] only to providers of commercial mobile services” or that impose “onerous zoning requirements on small cell installations when other similar [right of way] utility installations are erected with simple building permits.”49 Crown Castle is not alone in describing local regulations that slow deployment. AT&T states that localities in Maryland, California, and Massachusetts have imposed fees so high that it has had to pause or decrease deployments.50 Likewise, AT&T states that a Texas city has refused to allow small cell placement on any structures in a right-of-way (ROW).51 T-Mobile states that the Town of Hempstead, New York requires service providers who seek to collocate or upgrade equipment on existing towers that have been properly constructed pursuant to Class II standards to upgrade and certify these facilities under Class III standards that apply to civil and national defense and military facilities.52 Verizon states that a Minnesota town has proposed barring construction of new poles in rights-of-way and that a Midwestern suburb where it has been trying to get approval for small cells since 2014 has no established procedures for small cell approvals.53 Verizon states that localities in New York and Washington have required special use permits involving multiple layers of approval to locate small cells in some or all zoning districts.54 While some localities dispute some of these characterizations, their submissions do not persuade us that there is no basis or need for the actions we take here.

26. Further, the record in this proceeding demonstrates that many local siting authorities are not complying with our existing Section 332 shot clock rules.55 WIA states that its members routinely face lengthy delays and specifically cite localities in New Jersey, New Hampshire, and Maine as being (Continued from previous page)
2018) (“[L]ocal permitting delays continue to stymie deployments.”); Letter from Kenneth J. Simon, Crown Castle, to Marlene H. Dortch, FCC, WT Docket No. 17-79 (filed Aug. 10, 2018); Letter from Scott K. Bergmann, Senior Vice President, Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, at 1 (filed Aug. 30, 2018) (CTIA Aug. 30, 2018 Ex Parte Letter).
49 Crown Castle Comments at 7; see also Letter from Kenneth J. Simon, Senior Vice President and General Counsel, Crown Castle International Corp., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 1-2 (filed Sept. 19, 2018) (“In Hillsborough, California, Crown Castle submitted applications covering 16 nodes, and was assessed $60,000 in application fees. Not only did Hillsborough go on to deny these applications, following that denial it also then sent Crown Castle an invoice for an additional $351,773 (attached as Exhibit A), most of which appears to be related to outside counsel fees—all for equipment that was not approved and has not yet been constructed.”). 50 Letter from Henry Hultquist, Vice President, Federal Regulatory, AT&T, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 2 (filed Aug. 6, 2018) (AT&T Aug. 6, 2018 Ex Parte Letter). 51 AT&T Comments at 6-7.
52 T-Mobile Reply Comments at 7-9; see also CCA Reply Comments at 12; CTIA Reply Comments at 18; WIA Reply Comments at 22-23.
53 See Verizon Comments at 7.
54 See Verizon Comments at 35.
55 See, e.g., T-Mobile Comments at 8 (stating that “roughly 30% of all of its recently proposed sites (including small cells) involve cases where the locality failed to act in violation of the shot clocks.”). According to WIA, one of its members “reports that 70% of its applications to deploy Small Wireless Facilities in the public ROWs during a two- year period exceeded the 90-day shot clock for installation of Small Wireless Facilities on an existing utility pole, and 47% exceeded the 150-day shot clock for the construction of new towers.” WIA Comments at 7. A New Jersey locality took almost five years to deny a Sprint application. See Sprint Spectrum L.P. v. Zoning Bd. of Adjustment of the Borough of Paramus, N.J., 21 F. Supp. 3d 381, 383, 387 (D.N.J. 2014), aff’d, 606 Fed. Appx. 669 (3d Cir. 2015). Another locality took almost three years to deny a Crown Castle application to install a DAS system. See Crown Castle NG East, Inc. v. Town of Greenburgh, 2013 WL 3357169, *6-8 (S.D.N.Y. 2013), aff’d, 552 Fed.

Appx. 47 (2d Cir. 2014).
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problematic.56 Similarly, AT&T identified an instance in which it took a locality in California 800 days to process an application.57 GCI provides an example in which it took an Alaska locality nine months to decide an application. 58 T-Mobile states that a community in Colorado and one in California have lengthy pre-application processes for all small cell installations that include notification to all nearby households, a public meeting, and the preparation of a report, none of which these jurisdictions view as triggering a shot clock.59 Similarly, Lightower provides examples of long delays in processing siting applications. 60 Finally, Crown Castle describes a case in which a “town took approximately two years and nearly twenty meetings, with constantly shifting demands, before it would even ‘deem complete’ Crown Castle’s application.”61

27. Our Declaratory Ruling and Third Report and Order are intended to address these issues and outlier conduct. Our conclusions are also informed by findings, reports, and recommendations from the FCC Broadband Deployment Advisory Committee (BDAC), including the Model Code for Municipalities, the Removal of State and Local Regulatory Barriers Working Group report, and the Rates and Fees Ad Hoc Working Group report, which the Commission created in 2017 to identify barriers to deployment of broadband infrastructure, many of which are addressed here.62 We also considered input from numerous state and local officials about their concerns, and how they have approached wireless deployment, much of which we took into account here. Our action is also consistent with congressional efforts to hasten deployment, including bi-partisan legislation pending in Congress like the STREAMLINE Small Cell Deployment Act and SPEED Act. The STREAMLINE Small Cell Deployment Act proposes to streamline wireless infrastructure deployments by requiring siting agencies to act on deployment requests within specified time frames and by limiting the imposition of onerous 56 WIA Comments at 8. WIA states that one of its “member reports that the wireless siting approval process exceeds 90 days in more than 33% of jurisdictions it surveyed and exceeds 150 days in 25% of surveyed jurisdictions.” WIA Comments at 8. In some cases, WIA members have experienced delays ranging from one to three years in multiple jurisdictions—significantly longer than the 90- and 150-day time frames that the Commission established in 2009. 57 See WIA Comments at 9 (citing and discussing AT&T’s Comments in the 2016 Streamlining Public Notice, WT Docket No. 16-421).
58 GCI Comments at 5-6.
59 T-Mobile Comments at 21.
60 Lightower submits that average processing timeframes have increased from 300 days in 2016 to approximately 570 days in 2017, much longer than the Commission’s shot clocks. Lightower states that “forty-six separate jurisdictions in the last two years had taken longer than 150 days to consider applications, with twelve of those jurisdictions—representing 101 small wireless facilities—taking more than a year.” Lightower Comments at 5-6.

See also WIA Comments at 9 (citing and discussing Lightower’s Comments in the 2016 Streamlining Public Notice, WT Docket No. 16-421).
61 WIA Comments at 8 (citing and discussing Crown Castle’s Comments in 2016 Streamlining Public Notice, WT Docket No. 16-421).
62 BDAC Report of the Removal of State and Local Regulatory Barriers Working Group, https://www.fcc.gov/sites/default/files/bdac-regulatorybarriers-01232018.pdf (approved by the BDAC on January 23, 2018) (BDAC Regulatory Barriers Report); Draft Final Report of the Ad Hoc Committee on Rates and Fees to the BDAC, https://www.fcc.gov/sites/default/files/bdac-07-2627-2018-rates-fees-wg-report-07242018.pdf (July 26, 2018) (Draft BDAC Rates and Fees Report); BDAC Model Municipal Code (Harmonized), https://www.fcc.gov/sites/default/files/bdac-07-2627-2018-harmonization-wg-model-code-muni.pdf (approved July 26, 2018) (BDAC Model Municipal Code). The Draft Final Report of the Ad Hoc Committee on Rates and Fees to the BDAC was presented to the BDAC on July 26, 2018 but has not been voted by the BDAC as of the adoption of this Declaratory Ruling. Certain members of the Removal of State and Local Barriers Working Group also submitted a minority report disagreeing with certain findings in the BDAC Regulatory Barriers Report. See Minority Report Submitted by McAllen, TX, San Jose, CA, and New York, NY, GN Docket No. 17-83 (Jan 23, 2018); Letter from Kevin Pagan, City Attorney of McAllen to Marlene Dortch, Secretary, FCC (filed September 14, 2018).
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conditions and fees.63 The SPEED Act would similarly streamline federal permitting processes.64 In the same vein, the Model Code for Municipalities adopts streamlined infrastructure siting requirements while other BDAC reports and recommendations emphasize the negative impact of high fees on infrastructure deployments.65

28. As do members of both parties of Congress and experts on the BDAC, we recognize the urgent need to streamline regulatory requirements to accelerate the deployment of wireless infrastructure for current needs and for the next generation of wireless service in 5G.66 State government officials also have urged us to act to expedite the deployment of 5G technology, in particular, by streamlining overly burdensome regulatory processes to ensure that 5G technology will expand beyond just urban centers.

These officials have expressed their belief that reducing high regulatory costs and delays in urban areas would leave more money and encourage development in rural areas.67 “[G]etting [5G] infrastructure out in a timely manner can be a challenge that involves considerable time and financial resources. The solution is to streamline relevant policies—allowing more modern rules for modern infrastructure.”68 State officials have acknowledged that current regulations are “outdated” and “could hinder the timely arrival of 5G throughout the country,” and urged the FCC “to push for more reforms that will streamline infrastructure rules from coast to coast.”69 Although many states and localities support our efforts, we acknowledge that there are others who advocated for different approaches, arguing, among other points, 63 See, e.g., STREAMLINE Small Cell Deployment Act, S.3157, 115th Congress (2017-2018). 64 See, e.g., Streamlining Permitting to Enable Efficient Deployment of Broadband Infrastructure Act of 2017 (SPEED Act), S. 1988, 115th Cong. (2017).
65 See BDAC Model Municipal Code; Draft BDAC Rates and Fees Report; BDAC Regulatory Barriers Report. 66 See, e.g., Letter from Patricia Paoletta, Counsel to Deloitte Consulting LLP, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 1 (filed Sept. 20, 2018) (“Deloitte noted that, as with many technology standard evolutions, the value of being a first-mover in 5G will be significant. Being first to LTE afforded the United States macroeconomic benefits, as it became a test bed for innovative mobile, social, and streaming applications. Being first to 5G can have even greater and more sustained benefits to our national economy given the network effects associated with adding billions of devices to the 5G network, enabling machine-to-machine interactions that generates data for further utilization by vertical industries”). 67 Letter from Montana State Senator Duane Ankney to Marlene H. Dortch, Secretary, FCC, WT Docket 17-79, at 1 (filed July 31, 2018) (Duane Ankney July 31, 2018 Ex Parte Letter); Letter from Fred A. Lamphere, Butte County Sheriff, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79 at 1 (filed Sept. 11, 2018) (Fred A.

Lamphere Sept. 11, 2018 Ex Parte Letter); Letter from Todd Nash, Susan Roberts, Paul Catstilleja, Wallowa County Board of Commissioners, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 2 (filed Aug. 20, 2018); Letter from Lonnie Gilbert, First Responder, National Black Growers Council Member, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79 at 1 (filed Sept. 12, 2018); Letter from Jason R. Saine, North Caroline House of Representatives, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79, at 1(filed Sept. 14, 2018) (Jason R. Saine Sept. 14, 2018 Ex Parte Letter) (minimal regulatory standard across the United States is critical to ensure that the United States wins the race to the 5G economy). 68 Letter from LaWana Mayfield, City Council Member, Charlotte, NC, to Marlene H. Dortch, Secretary, FCC, WT Docket 17-79, at 1 (filed July 31, 2018) (LaWana Mayfield July 31, 2018 Ex Parte Letter); see also Letter from South Carolina State Representative Terry Alexander to Marlene H. Dortch, Secretary, FCC, WT Docket 17-79, at 1 (filed August 7, 2018) (“[P]olicymakers at all levels of government must streamline complex siting stipulations that will otherwise slow down 5G buildout for small cells in particular.”); Letter from Sal Pace, Pueblo County Commissioner, District 3, CO, to Marlene H. Dortch, Secretary, FCC, WT Docket 17-79, at 1 (filed July 30, 2018) (Sal Pace July 30, 2018 Ex Parte Letter) (“[T]he FCC should ensure that localities are fully compensated for their costs . . . Such fees should be reasonable and non-discriminatory, and should ensure that localities are made whole.

Lastly, the FCC should set reasonable and enforceable deadlines for localities to act on wireless permit applications. . . . The distinction between siting large macro-towers and small cells should be reflected in any rulemaking.”) 69 Letter from Dr. Carolyn A. Prince, Chairwoman, Marlboro County Council, SC, to Marlene H. Dortch, Secretary, FCC, WT Docket 17-79, at 1 (filed July 31, 2018) (Dr. Carolyn Prince July 31, 2018 Ex Parte Letter) 9099

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that the FCC lacks authority to take certain actions.70 We have carefully considered these views, but nevertheless find our actions here necessary and fully supported.

29. Accordingly, in this Declaratory Ruling and Third Report and Order, we act to reduce regulatory barriers to the deployment of wireless infrastructure and to ensure that our nation remains the leader in advanced wireless services and wireless technology.

III. DECLARATORY RULING

30. In this Declaratory Ruling, we note that a number of appellate courts have articulated different and often conflicting views regarding the scope and nature of the limits Congress imposed on state and local governments through Sections 253 and 332. In light of these diverging views, Congress’s vision for a consistent, national policy framework, and the need to ensure that our approach continues to make sense in light of the relatively new trend towards the large-scale deployment of Small Wireless Facilities, we take this opportunity to clarify and update the FCC’s reading of the limits Congress imposed. We do so in three main respects.

31. First, in Part III.A, we express our agreement with the views already stated by the First, Second, and Tenth Circuits that the “materially inhibit” standard articulated in 1997 by the Clinton-era FCC’s California Payphone decision is the appropriate standard for determining whether a state or local law operates as a prohibition or effective prohibition within the meaning of Sections 253 and 332.

32. Second, in Part III.B, we note, as numerous courts have recognized, that state and local fees and other charges associated with the deployment of wireless infrastructure can effectively prohibit the provision of service. At the same time, courts have articulated various approaches to determining the types of fees that run afoul of Congress’s limits in Sections 253 and 332. We thus clarify the particular standard that governs the fees and charges that violate Sections 253 and 332 when it comes to the Small Wireless Facilities at issue in this decision. Namely, fees are only permitted to the extent that they represent a reasonable approximation of the local government’s objectively reasonable costs, and are non- discriminatory.71 In this section, we also identify specific fee levels for the deployment of Small Wireless Facilities that presumptively comply with this standard. We do so to help avoid unnecessary litigation, while recognizing that it is the standard itself, not the particular, presumptive fee levels we articulate, that ultimately will govern whether a particular fee is allowed under Sections 253 and 332. So fees above 70 See, e.g., City of Manhattan, KS Sept. 13, 2018 Ex Parte Letter at 1-2; Ronny Berdugo Sept. 18, 2018 Ex Parte Letter at 1-2; Damon Connolly Sept. 17, 2018 Ex Parte Letter at 1-2. 71 Fees charged by states or localities in connection with Small Wireless Facilities would be “compensation” for purposes of Section 253(c). This Declaratory Ruling interprets Section 253 and 332(c)(7) in the context of three categories of fees, one of which applies to all deployments of Small Wireless Facilities while the other two are specific to Small Wireless Facilities deployments inside the ROW. (1) “Event” or “one-time” fees are charges that providers pay on a non-recurring basis in connection with a one-time event, or series of events occurring within a finite period. The one-time fees addressed in this Declaratory Ruling are not specific to the ROW. For example, a provider may be required to pay fees during the application process to cover the costs related to processing an application building or construction permits, street closures, or a permitting fee, whether or not the deployment is in the ROW. (2) Recurring charges for a Small Wireless Facility’s use of or attachment to property inside the ROW owned or controlled by a state or local government, such as a light pole or traffic light, is the second category of fees addressed here, and is typically paid on a per structure/per year basis. (3) Finally, ROW access fees are recurring charges that are assessed, in some instances, to compensate a state or locality for a Small Wireless Facility’s access to the ROW, which includes the area on, below, or above a public roadway, highway, street, sidewalk, alley, utility easement, or similar property (including when such property is government-owned). A ROW access fee may be charged even if the Small Wireless Facility is not using government owned property within the ROW. AT&T Comments at 18 (describing three categories of fees); Letter from Tamara Preiss, Vice President, Federal Regulatory and Legal Affairs, Verizon, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, Attach. at 11 (filed Aug. 10, 2018) (Verizon Aug. 10, 2018 Ex Parte Letter) (characterizing fees as recurring or non-recurring); see also Draft BDAC Rates and Fees Report at p. 15-16. Unless otherwise specified, a reference to “fee” or “fees” herein refers to any one of, or any combination of, these three categories of charges. 9100

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those levels would be permissible under Sections 253 and 332 to the extent a locality’s actual, reasonable costs (as measured by the standard above) are higher.

33. Finally, in Part III.C, we focus on a subset of other, non-fee provisions of state and local law that could also operate as prohibitions on service. We do so in particular by addressing state and local consideration of aesthetic concerns in the deployment of Small Wireless Facilities. We note that the Small Wireless Facilities that are the subject of this Declaratory Ruling remain subject to the Commission’s rules governing Radio Frequency (RF) emissions exposure.72 A. Overview of the Section 253 and Section 332(c)(7) Framework Relevant to Small Wireless Facilities Deployment

34. In Sections 253(a) and 332(c)(7)(B) of the Act, Congress determined that state or local requirements that prohibit or have the effect of prohibiting the provision of service are unlawful and thus preempted.73 Section 253(a) addresses “any interstate or intrastate telecommunications service,” while Section 332(c)(7)(B)(i)(II) addresses “personal wireless services.”74 Although the provisions contain identical “effect of prohibiting” language, the Commission and different courts over the years have each employed inconsistent approaches to deciding what it means for a state or local legal requirement to have the “effect of prohibiting” services under these two sections of the Act. This has caused confusion among both providers and local governments about what legal requirements are permitted under Sections 253 and 332(c)(7). For example, despite Commission decisions to the contrary construing such language under Section 253, some courts have held that a denial of a wireless siting application will “prohibit or have the effect of prohibiting” the provision of a personal wireless service under Section 332(c)(7)(B)(i)(II) only if the provider can establish that it has a significant gap in service coverage in the 72 See 47 CFR §§ 1.1307, 1.1310. We disagree with commenters who oppose the Declaratory Ruling on the basis of concerns regarding RF emissions. See, e.g., Comments from Judy Aizuss, Comments from Jeffrey Arndt, Comments from Jeanice Barcelo, Comments from Kristin Beatty, Comments from James M. Benster, Comments from Terrie Burns, Comments from EMF Safety Network, Comments from Kate Reese Hurd, Comments from Marilynne Martin, Comments from Lisa Mayock, Comments from Kristen Moriarty Termunde, Comments from Sage Associates, Comments from Elizabeth Shapiro, Comments from Paul Silver, Comments from Natalie Ventrice.

The Commission has authority to adopt and enforce RF exposure limits, and nothing in this Declaratory Ruling changes the applicability of the Commission’s existing RF emissions exposure rules. See, e.g., Section 704(b) of the Telecommunications Act of 1996, Pub. L. No. 104-104 (directing Commission to “prescribe and make effective rules regarding the environmental effects of radio frequency emissions” upon completing action in then-pending rulemaking proceeding that included proposals for, inter alia, maximum exposure limits); 47 U.S.C. § 332(c)(7)(B)(iv) (recognizing legitimacy of FCC’s existing regulations on environmental effects of RF emissions of personal wireless service facilities, by proscribing state and local regulation of such facilities on the basis of such effects, to the extent such facilities comply with Commission regulations concerning such RF emissions); 47 U.S.C. § 151 (creating the FCC “[f]or the purpose of regulating interstate and foreign commerce in communication by wire and radio so as to make available, so far as possible, to all the people of the United States, . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communication service, . . . for the purpose of [inter alia] promoting safety of life and property through the use of wire and radio communications”). See also H.R. Rep. No. 204(I), 104th Cong., 1st Sess. 94 (1995), reprinted in 1996 U.S.C.C.A.N. 10, 61 (1996) (in legislative history of Section 704 of 1996 Telecommunications Act, identifying “adequate safeguards of the public health and safety” as part of a framework of uniform, nationwide RF regulations); ; Reassessment of FCC Radiofrequency Exposure Limits and Policies, First Report and Order, Further Notice of Proposed Rulemaking and Notice of Inquiry, 28 FCC Rcd 3498, 3530-31, para. 103, n.176 (2013).
73 47 U.S.C. §§ 253(a), 332(c)(7)(B)(i)(II).
74 Id. The actions in this proceeding update the FCC’s approach to Sections 253 and 332 by addressing effective prohibitions that apply to the deployment of services covered by those provisions. Our interpretations in this proceeding do not provide any basis for increasing the regulation of services deployed consistent with Section 621 of the Cable Communications Policy Act of 1984.
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area and a lack of feasible alternative locations for siting facilities.75 Other courts have held that evidence of an already-occurring or complete inability to offer a telecommunications service is required to demonstrate an effective prohibition under Section 253(a).76 Conversely, still other courts like the First, Second, and Tenth Circuits have endorsed prior Commission interpretations of what constitutes an effective prohibition under Section 253(a) and recognized that, under that analytical framework, a legal requirement can constitute an effective prohibition of services even if it is not an insurmountable barrier.77

35. In this Declaratory Ruling, we first reaffirm, as our definitive interpretation of the effective prohibition standard, the test we set forth in California Payphone, namely, that a state or local legal requirement constitutes an effective prohibition if it “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.”78 We then explain how this “material inhibition” standard applies in the context of state and local fees and aesthetic requirements. In doing so, we confirm the First, Second, and Tenth Circuits’ understanding that under this analytical framework, a legal requirement can “materially inhibit” the provision of services even if it is not an insurmountable barrier.79 We also resolve the conflicting court interpretations of the 75 Courts vary widely regarding the type of showing needed to satisfy the second part of that standard. The First, Fourth, and Seventh Circuits have imposed a “heavy burden” of proof on applicants to establish a lack of alternative feasible sites, requiring them to show “not just that this application has been rejected but that further reasonable efforts to find another solution are so likely to be fruitless that it is a waste of time even to try.” Green Mountain Realty Corp. v. Leonard, 750 F.3d 30, 40 (1st Cir. 2014); accord New Cingular Wireless PCS, LLC v. Fairfax County, 674 F.3d 270, 277 (4th Cir. 2012); T-Mobile Northeast LLC v. Fairfax County, 672 F.3d 259, 266-68 (4th Cir. 2012) (en banc); Helcher v. Dearborn County, 595 F.3d 710, 723 (7th Cir. 2010) (Helcher). The Second, Third, and Ninth Circuits have held that an applicant must show only that its proposed facilities are the “least intrusive means” for filling a coverage gap in light of the aesthetic or other values that the local authority seeks to serve. Sprint Spectrum, LP v. Willoth, 176 F.3d 630, 643 (2d Cir. 1999) (Willoth); APT Pittsburgh Ltd. P’ship v.

Penn Township, 196 F.3d 469, 480 (3d Cir. 1999) (APT); American Tower Corp. v. City of San Diego, 763 F.3d 1035, 1056-57 (9th Cir. 2014); T-Mobile USA, Inc. v. City of Anacortes, 572 F.3d 987, 995-99 (9th Cir. 2009) (City of Anacortes).
76 See, e.g., County of San Diego, 543 F.3d at 579-80; Level 3 Commc’ns, LLC v. City of St. Louis, 477 F.3d 528, 533-34 (8th Cir. 2007) (City of St. Louis).
77 See Puerto Rico Tel. Co. v. Municipality of Guayanilla, 450 F.3d 9, 18 (1st Cir. 2006) (Municipality of Guayanilla); TCG New York, Inc. v. City of White Plains, 305 F.3d 67, 76 (2d Cir. 2002) (City of White Plains); RT Communications v. FCC, 201 F.3d 1264, 1268 (10th Cir. 2000) (“[Section] 253(a) forbids any statute which prohibits or has ‘the effect of prohibiting’ entry. Nowhere does the statute require that a bar to entry be insurmountable before the FCC must preempt it.”) (RT Communications) (affirming Silver Star Tel. Co. Petition for Preemption and Declaratory Ruling, 12 FCC Rcd 15639 (1997)). 78 California Payphone, 12 FCC Rcd at 14206, para. 31. A number of circuit courts have cited California Payphone as the leading authority regarding the standard to be applied under Section 253(a). See, e.g., County of San Diego, 543 F.3d at 578; City of St. Louis, 477 F.3d at 533; Municipality of Guayanilla, 450 F.3d at 18; Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1270 (10th Cir. 2004) (City of Santa Fe); City of White Plains, 305 F.3d at 76. Crown Castle argues that the Eighth and Ninth Circuit cited the FCC’s California Payphone decision,but read the standard in an overly narrow fashion. See, e.g., Letter from Kenneth J. Simon, Senior Vice Pres. and Gen. Counsel, Crown Castle, et al., to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 12 (filed June 7, 2018) (Crown Castle June 7, 2018 Ex Parte Letter); see also Smart Communities Comments at 60-61 (describing circuit split). Some commenters cite selected dictionary definitions or otherwise argue for a narrow definition of “prohibit.” See, e.g., Smart Communities Reply at 53. But because they do not go on to dispute the validity of the California Payphone standard that has been employed not only by the Commission but also many courts, those arguments do not persuade us to depart from the California Payphone standard here. 79 See, e.g., City of White Plains, 305 F.3d at 76; Municipality of Guayanilla, 450 F.3d at 18; see also, e.g., Crown Castle June 7, 2018 Ex Parte Letter at 12. Because the clarifications in this order should reduce uncertainty regarding the application of these provisions for state and local governments as well as stakeholders, we are not persuaded by some commenters’ arguments that an expedited complaint process is required. See, e.g., AT&T Comments at 28; CTIA Reply at 21. We do not address, at this time, recently-filed petitions for reconsideration of our August 2018 Moratoria Declaratory Ruling. See, e.g., Smart Communities Petition for Reconsideration, WC 9102

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‘effective prohibition’ language so that continuing confusion on the meaning of Sections 253 and 332(c)(7) does not materially inhibit the critical deployments of Small Wireless Facilities and our nation’s drive to deploy 5G.80

36. As an initial matter, we note that our Declaratory Ruling applies with equal measure to the effective prohibition standard that appears in both Sections 253(a) and 332(c)(7).81 This ruling is consistent with the basic canon of statutory interpretation that identical words appearing in neighboring provisions of the same statute generally should be interpreted to have the same meaning.82 Moreover, both of these provisions apply to wireless telecommunications services83 as well as to commingled services and facilities.84
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Docket No. 17-84 & WT Docket No. 17-79 (filed Sept. 4, 2018); New York City Petition for Reconsideration, WC Docket No. 17-84 & WT Docket No. 17-79 (filed Sept. 4, 2018). Nor do we address requests for clarification and/or action on other issues raised in the record beyond those expressly discussed in this order. These other issues include arguments regarding other statutory interpretations that we do not address here. See, e.g., CTIA Reply at 23 (raising broader questions about the precise interplay of Section 253 and Section 332(c)(7)); Crown Castle June 7, 2018 Ex Parte Letter at 16-17 (raising broader questions about the scope of “legal requirements” under Section 253(a)).

Consequently, this order should not be read as impliedly taking a position on those issues. 80 See, e.g., Crown Castle June 7, 2018 Ex Parte Letter at 11-12 (arguing that “[d]espite the Commission’s efforts to define the boundaries of federal preemption under Section 253, courts have issued a number of conflicting decisions that have only served to confuse the preemption analysis sunder section 253” and that “the Commission should clarify that the California Payphone standard as interpreted by the First and Second Circuits is the appropriate standard going forward”); see also BDAC Regulatory Barriers Report at p. 9 (“The Commission should provide clarity on what actually constitutes an “excessive” fee for right-of-way access and use. The FCC should provide guidance on what constitutes a fee that is excessive and/or duplicative, and that therefore is not “fair and reasonable.” The Commission should specifically clarify that “fair and reasonable” compensation for right-of way access and use implies some relation to the burden of new equipment placed in the ROW or on the local asset, or some other objective standard.”). Because our decision provides clarity by addressing conflicting court decisions and reaffirming that the “materially inhibits” standard articulated in the Commission’s California Payphone decision is the appropriate standard for determining whether a state or local law operates as an effective prohibition within the meaning of Sections 253 and 332, we reject arguments that our action will increase conflicts and lead to more litigation. See e.g., Letter from Michael Dylan Brennan, Mayor, City of University Heights, Ohio, to Marlene H.

Dortch, Secretary, FCC, WT Docket No. 17-79, at 2 (filed Sept. 19, 2018) (stating that “…this framing and definition of effective prohibition opens local governments to the likelihood of more, not less, conflict and litigation over requirements for aesthetics, spacing, and undergrounding”). 81 See infra Part III.A, B.
82 See County of San Diego, 543 F.3d at 579 (“We see nothing suggesting that Congress intended a different meaning of the text ‘prohibit or have the effect of prohibiting’ in the two statutory provisions, enacted at the same time, in the same statute. * * * * * As we now hold, the legal standard is the same under either [Section 253 or 332(c)(7)].”); see also, e.g., Puerto Rico v. Franklin Cal. Tax-Free Trust, 136 S. Ct. 1938, 1946 (citing Sullivan v.

Stroop, 496 U.S. 478, 484 (1990) (reading same term used in different parts of the same Act to have the same meaning); Northcross v. Board of Ed. of Memphis City Schools, 412 U.S. 427, 428 (1973) (per curiam) (“[S]imilarity of language . . . is . . . a strong indication that the two statutes should be interpreted pari passu”); Verizon Comments at 9-10; AT&T Reply at 3-4; Crown Castle June 7, 2018 Ex Parte Letter at 15. 83 Common carrier wireless services meet the definition of “telecommunications services,” and thus are within the scope of Section 253(a) of the Act. See, e.g., Moratoria Declaratory Ruling, FCC 18-111, para 142 n.523; see also, e.g., League of Minnesota Cities Comments at 11; Verizon Reply at 9-10. While some commenters cite certain distinguishing factual characteristics between wireline and wireless services, the record does not reveal why those distinctions would be material to whether wireless telecommunications services are covered by Section 253 in the first instance. See, e.g., City of San Antonio et al. Comments, Exh. A at 13; Virginia Joint Commenters Comments at 5, Exh. A at 45-46. To the contrary, Section 253(e) expressly preserves “application of section 332(c)(3) of this title to commercial mobile service providers” notwithstanding Section 253—a provision that would be meaningless if wireless telecommunications services already fell outside the scope of Section 253. 47 U.S.C. § 253(e). For this same reason, we also reject claims that the existence of certain protections for personal wireless services in Section 332(c)(7), or the phrase “nothing in this chapter” in Section 332(c)(7)(A), demonstrate that states’ or localities’ 9103

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37. As explained in California Payphone and reaffirmed here, a state or local legal requirement will have the effect of prohibiting wireless telecommunications services if it materially inhibits the provision of such services. We clarify that an effective prohibition occurs where a state or local legal requirement materially inhibits a provider’s ability to engage in any of a variety of activities related to its provision of a covered service.85 This test is met not only when filling a coverage gap but also when densifying a wireless network, introducing new services or otherwise improving service (Continued from previous page)
regulations affecting wireless telecommunications services must fall outside the scope of Section 253. See, e.g., Virginia Joint Commenters Comments, Exh. A at iii, 45-46; Smart Communities Comments at 56. Even if, as some parties argue, the phrase “nothing in this chapter” could be construed as preserving state or local decisions on the placement, construction, or modification of personal wireless service facilities from preemption by other sections of the Communications Act, Section 332(c)(7)(A) goes on to make clear that such state or local decisions are not immune from preemption if they violate any of the standards set forth in Section 332(c)(7)(B)--including Section 332(c)(7)(B)(i)(II)’s ban of requirements that “prohibit or have the effect of prohibiting” the provision of service, which is identical to the preemption provision in Section 253(a). Thus, states and localities may charge fees and dispose of applications relating to the matters subject to Section 332(c)(7) in any manner they deem appropriate, so long as that conduct does not amount to a prohibition or effective prohibition, as interpreted in this Declaratory Ruling or otherwise run afoul of federal or state law; but because Sections 332(c)(7)(B)(i)(II) and 253(a) use identical ”effective prohibition” language, the standard for what is saved and what is preempted is the same under both provisions.
84 See infra para. 40 (discussing use of small cells to close coverage gaps, including voice gaps); see also, e.g., Moratoria Declaratory Ruling, FCC 18-111, para 145 n.531; Restoring Internet Freedom, Declaratory Ruling, Report and Order, and Order, 33 FCC Rcd 311, 425, para. 190 (2018); Letter from Andre J. Lachance, Associate General Counsel, Verizon to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 3 (filed Sept. 19, 2018) (confirming that “telecommunications services can be provided over small cells and Verizon has deployed Small Wireless Facilities in its network that provide telecommunications services.”); Letter from David M. Crawford, Senior Corporate Counsel, Fed. Reg. Affairs, T-Mobile, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17- 79 at 1 (filed Sept. 19, 2018) (stating that “small wireless facilities are a critical component of T-Mobile’s network deployment plans to support both the 5G evolution of wireless services, as well as more traditional services such as mobile broadband and even voice calls. T-Mobile, for example, uses small wireless facilities to densify our network to provide better coverage and greater capacity, and to provide traditional services such as voice calls in areas where our macro site coverage is insufficient to meet demand.”); Letter from Henry G. Hultquist, Vice President, Federal Regulatory, AT&T, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 1 (filed Sept. 20, 2018) (“AT&T has operated and continues to operate commercial mobile radio services as well as information services from small wireless facilities...”); see also, e.g., Coastal Communications Service v. City of New York, 658 F. Supp. 2d 425, 441-42 (E.D.N.Y. 2009) (finding that a restriction on advertising on newly-installed payphones was subject to Section 253(a) where the advertising was a material factor in the provider’s ability to provide the payphone service itself). The fact that facilities are sometimes deployed by third parties not themselves providing covered services also does not place such deployment beyond the purview of Section 253(a) or Section 332(c)(7)(B)(i) insofar as the facilities are used by wireless service providers on a wholesale basis to provide covered services (among other things). See, e.g., T-Mobile Comments at 26. Given our conclusion that neither commingling of services nor the identity of the entity engaged in the deployment activity changes the applicability of Section 253(a) or Section 332(c)(7)(B)(i)(II) where the facilities are being used for the provisioning of services within the scope of the relevant statutory provisions, we reject claims to the contrary. See, e.g., Colorado Communications and Utility Alliance et al. Comments at 15-16; City of San Antonio et al. Comments, Exh. A at 12; id., Exh. C at 13-15.

Because local jurisdictions do not have the authority to regulate these interstate services, there is no basis for local jurisdictions to conduct proceedings on the types of personal wireless services offered over particular wireless service facilities or the licensee’s service area, which are matters within the Commission’s licensing authority.

Furthermore, local jurisdictions do not have the authority to require that providers offer certain types or levels of service, or to dictate the design of a provider’s network. See 47 U.S.C. § 332(c)(3)(A); see also Bastien v. AT&T Wireless Servs., Inc., 205 F.3d 983, 989 (7th Cir. 2000). 85 By “covered service” we mean a telecommunications service or a personal wireless service for purposes of Section 253 and Section 332(c)(7), respectively.
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capabilities.86 Under the California Payphone standard, a state or local legal requirement could materially inhibit service in numerous ways—not only by rendering a service provider unable to provide an existing service in a new geographic area or by restricting the entry of a new provider in providing service in a particular area, but also by materially inhibiting the introduction of new services or the improvement of existing services. Thus, an effective prohibition includes materially inhibiting additional services or improving existing services.87

38. Our reading of Section 253(a) and Section 332(c)(7)(B)(i)(II) reflects and supports a marketplace in which services can be offered in a multitude of ways with varied capabilities and performance characteristics consistent with the policy goals in the 1996 Act and the Communications Act.

To limit Sections 253(a) and 332(c)(7)(B)(i)(II) to protecting only against coverage gaps or the like would be to ignore Congress’s contemporaneously-expressed goals of “promot[ing] competition[,] . . . secur[ing] . . . higher quality services for American telecommunications consumers and encourage[ing] the rapid deployment of new telecommunications technologies.”88 In addition, as the Commission recently explained, the implementation of the Act “must factor in the fundamental objectives of the Act, including the deployment of a ‘rapid, efficient . . . wire and radio communication service with adequate facilities at reasonable charges’ and ‘the development and rapid deployment of new technologies, products and services for the benefit of the public . . . without administrative or judicial delays[, and] efficient and 86 See, e.g., Crown Castle Comments at 54-55; Free State Foundation Comments at 12; T-Mobile Comments at 43- 45; CTIA Reply at 14; WIA Reply at 26; Crown Castle June 7, 2018 Ex Parte Letter at 13-14; Letter from Kara Romagnino Graves, Director, Regulatory Affairs, CTIA, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17- 79, at 8-9 (filed June 27, 2018) (CTIA June 27, 2018 Ex Parte Letter). As T-Mobile explains, for example, a provider might need to improve “signal strength or system capacity to allow it to provide reliable service to consumers in residential and commercial buildings.” T-Mobile Comments at 43; see also, e.g., Acceleration of Broadband Deployment by Improving Wireless Facilities Siting Policies, WT Docket Nos. 13-238, et al., Notice of Proposed Rulemaking, 28 FCC Rcd 14238, 14253, para. 38 (2013) (observing that “DAS and small cell facilities[ ] are critical to satisfying demand for ubiquitous mobile voice and broadband services”). The growing prevalence of smart phones has only accelerated the demand for wireless providers to take steps to improve their service offerings.

See, e.g., Twentieth Wireless Competition Report, 32 FCC Rcd at 9011-13, paras. 62-65. 87 Our conclusion finds further support in our broad understanding of the statutory term “service,” which, as we explained in our recent Moratoria Declaratory Ruling, means “any covered service a provider wishes to provide, incorporating the abilities and performance characteristics it wishes to employ, including to provide existing services more robustly, or at a higher level of quality—such as through filling a coverage gap, densification, or otherwise improving service capabilities.” Moratoria Declaratory Ruling, FCC 18-111, para. 162 n.594; see also Public Utility Comm’n of Texas Petition for Declaratory Ruling and/or Preemption of Certain Provisions of the Texas Public Utility Regulatory Act of 1995, Memorandum Opinion and Order, 13 FCC Rcd 3460, 3496, para. 74 (1997) (Texas PUC Order) (interpreting the scope of ‘telecommunications services’ covered by Section 253(a) and clarifying that it would be an unlawful prohibition for a state or locality to specify “the means or facilities” through which a service provider must offer service); Crown Castle June 7, 2018 Ex Parte Letter at 10-11 (discussing this precedent). We find this interpretation of “service” warranted not only under Section 253(a), but Section 332(c)(7)(B)(i)(II)’s reference to “services” as well.
88 Preamble to the Telecommunications Act of 1996, Pub. Law. No. 104-104, § 202, 110 Stat. 56 (1996).

Consequently, we reject arguments suggesting that the provision of some level of wireless service in the past necessarily demonstrates that there is no effective prohibition of service under the state or local legal requirements that applied during those periods or that an effective prohibition only is present if a provider can provide no covered service whatsoever. See, e.g., City and County of San Francisco Comments at 25-26; Virginia Joint Commenters Comments, Exh. A at 31-33. Nor, in light of these goals, do we find it reasonable to interpret the protections of these provisions as doing nothing more than guarding against a monopoly as some suggest. See, e.g., Smart Communities Comments, WC Docket No. 17-84, at 8-9 (filed June 15, 2017) cited in Smart Communities Comments at 57 n.141.
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intensive use of the electromagnetic spectrum.’”89 These provisions demonstrate that our interpretation of Section 253 and Section 332(c)(7)(B)(i)(II) is in accordance with the broader goals of the various statutes that the Commission is entrusted to administer.

39. California Payphone further concluded that providers must be allowed to compete in a “fair and balanced regulatory environment.”90 As reflected in decisions such as the Commission’s Texas PUC Order, a state or local legal requirement can function as an effective prohibition either because of the resulting “financial burden” in an absolute sense, or, independently, because of a resulting competitive disparity.91 We clarify that “[a] regulatory structure that gives an advantage to particular services or facilities has a prohibitory effect, even if there are no express barriers to entry in the state or local code; the greater the discriminatory effect, the more certain it is that entities providing service using the disfavored facilities will experience prohibition.”92 This conclusion is consistent with both Commission and judicial precedent recognizing the prohibitory effect that results from a competitor being treated materially differently than similarly-situated providers.93 We provide our authoritative interpretation below of the circumstances in which a “financial burden,” as described in the Texas PUC Order, constitutes an effective prohibition in the context of certain state and local fees.

40. As we explained above, we reject alternative readings of the effective prohibition language that have been adopted by some courts and used to defend local requirements that have the effect of prohibiting densification of networks. Decisions that have applied solely a “coverage gap”- based approach under Section 332(c)(7)(B)(i)(II) reflect both an unduly narrow reading of the statute and an outdated view of the marketplace.94 Those cases, including some that formed the foundation for 89 Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment, Second Report and Order, FCC 18-30, para. 62 (rel. Mar. 30, 2018) (Wireless Infrastructure Second R&O) (quoting 47 U.S.C. §§ 151, 309(j)(3)(A), (D)).
90 California Payphone, 12 FCC Rcd at 14206, para. 31.
91 Texas PUC Order, 13 FCC Rcd at 3466, 3498-500, paras. 13, 78-81; see also, e.g., Crown Castle June 7, 2018 Ex Parte at 10-11, 13.
92 Crown Castle June 7, 2018 Ex Parte Letter at 13.
93 See, e.g., Texas PUC Order, 13 FCC Rcd at 3466, 3498-500, paras. 13, 78-81; Federal-State Joint Board on Universal Service; Western Wireless Corporation Petition for Preemption of an Order of the South Dakota Public Utilities, Declaratory Ruling, 15 FCC Rcd 15168, 15173, paras. 12-13 (2000) (Western Wireless Order); Pittencrieff Communications, Inc. Petition for Declaratory Ruling Regarding Preemption of the Texas Public Utility Regulatory Act of 1995, Memorandum Opinion and Order, 13 FCC Rcd 1735, 1751-52, para. 32 (1997) (Pittencrieff), aff’d, Cellular Telecomm. Indus. Ass‘n v. FCC, 168 F.3d 1332 (5th Cir. 1999); City of White Plains, 305 F.3d at 80. 94 Smart Communities seeks clarification of whether this Declaratory Ruling is meant to say that the “coverage gap” standard followed by a number of courts should include consideration of capacity as well as coverage issues. Letter from Gerard Lavery Lederer, Counsel, Smart Communities and Special Districts Coalition, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, Att. at 17 (Sept. 19, 2018) (Smart Communities Sept. 19 Ex Parte Letter).

We are not holding that prior “coverage gap” analyses are consistent with the standards we articulate here as long as they also take into account “capacity gaps”; rather, we are articulating here the effective prohibition standard that should apply while, at the same time, noting one way in which prior approaches erred by requiring coverage gaps.

Accordingly, we reject both the version of the “coverage gap” test followed by the First, Fourth, and Seventh Circuits (requiring applicants to show “not just that this application has been rejected but that further reasonable efforts to find another solution are so likely to be fruitless that it is a waste of time even to try”) and the version endorsed by the Second, Third, and Ninth Circuits (requiring applicants to show that the proposed facilities are the “least intrusive means” for filling a coverage gap) See supra n. 75. We also note that some courts have expressed concern about alternative readings of the statute that would lead to extreme outcomes—either always requiring a grant under some interpretations, or never preventing a denial under other interpretations. See, e.g., Willoth, 176 F.3d at 639-41; APT, 196 F.3d at 478-79; Town of Amherst v. Omnipoint Communications Enterprises, Inc., 173 F.3d 9, 14 (1st Cir. 1999); AT&T Wireless PCS v. City Council of Virginia Beach, 155 F.3d 423, 428 (4th Cir. 1998) (City Council of Virginia Beach); see also, e.g., Greenling Comments at 2; City and County of San Francisco Reply 9106

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“coverage gap”-based analytical approaches, appear to view wireless service as if it were a single, monolithic offering provided only via traditional wireless towers. 95 By contrast, the current wireless marketplace is characterized by a wide variety of offerings with differing service characteristics and deployment strategies. 96 As Crown Castle explains, coverage gap-based approaches are “simply (Continued from previous page)
at 16. Our interpretation avoids those concerns while better reflecting the text and policy goals of the Communications Act and 1996 Act than coverage gap-based approaches ultimately adopted by those courts. Our approach ensures meaningful constraints on state and local conduct that otherwise would prohibit or have the effect of prohibiting the provision of personal wireless services. At the same time, our standard does not preclude all state and local denials of requests for the placement, construction, or modification of personal wireless service facilities, as explained below. See infra III.B, C.
95 See, e.g., Willoth, 176 F.3d at 641-44; 360 Degrees Commc’ns Co. v.Board of Supervisors of Albemarle County, 211 F.3d 79, 86-88 & n.1 (4th Cir. 2000) (Albemarle County); see also, e.g., ExteNet Comments at 29; T-Mobile Comments at 42; Verizon Comments at 18; WIA Comments at 38-40. Even some cases that implicitly recognize the limitations of a gap-based test fail to account for those limitations in practice when applying Section 332(c)(7)(B)(i)(II). See, e.g., Second Generation Properties v. Town of Pelham, 313 F.3d 620, 633 n.14 (4th Cir. 2002) (discussing scenarios where a carrier has coverage but insufficient capacity to adequately handle the volume of calls or where new technology emerges and a carrier would like to use it in areas that already have coverage using prior-generation technology). Courts that have sought to identify limited set of characteristics of personal wireless services covered by the Act essentially allow actual or effective prohibition of many personal wireless services that providers wish to offer with additional or more advanced characteristics. See, e.g., Willoth, 176 F.3d at 641-43 (drawing upon certain statutory definitions); Cellular Tel. Co. v. Zoning Bd. of Adjustment of the Borough of Ho-Ho- Kus, 197 F.3d 64, 70 (3d Cir. 1999) (Borough of Ho-Ho-Kus) (concluding that it should be up to state or local authorities to assess and weigh the benefits of differing service qualities); Albemarle County, 211 F.3d at 87 (citing 47 CFR §§ 22.99, 22.911(b) as noting the possibility of some ‘dead spots’); cf. USCOC of Greater Iowa, Inc. v.

Zoning Bd. of Adjustment of the City of Des Moines, 465 F.3d 817 (8th Cir. 2006) (describing as a “dubious proposition” the argument that a denial of a request to construct a tower resulting in “less than optimal” service quality could be an effective prohibition). An outcome that allows the actual or effective prohibition of some covered services is contrary to the Act. Section 253(a) applies to any state or local legal requirement that prohibits or has the effect of prohibiting any entity from providing “any” interstate or intrastate telecommunications service, 47 U.S.C. § 253(a). Similarly, Section 332(c)(7)(B)(i)(II) categorically precludes state or local regulation of the placement, construction, or modification of personal wireless service facilities that prohibits or has the effect of prohibiting the provision of personal wireless “services.” 47 U.S.C. § 332(c)(7)(B)(i)(II). We find the most natural interpretation of these sections is that any service that meets the definition of “telecommunications service” or “personal wireless service” is encompassed by the language of each provision, rather than only some subset of such services or service generally. The notion that such state or local regulation permissibly could prohibit some personal wireless services, so long as others are available, is at odds with that interpretation. In addition, as we explain above, a contrary approach would fail to advance important statutory goals as well as the interpretation we adopt.

Further, the approach reflected in these court decisions could involve state or local authorities “inquir[ing] into and regulat[ing] the services offered—an inquiry for which they are ill-qualified to pursue and which could only delay infrastructure deployment.” Crown Castle June 7, 2018 Ex Parte Letter at 14. Instead, our effective prohibition analysis focuses on the service the provider wishes to provide, incorporating the capabilities and performance characteristics it wishes to employ, including facilities deployment to provide existing services more robustly, or at a better level of quality, all to offer a more robust and competitive wireless service for the benefit of the public. 96 See generally, e.g., Twentieth Wireless Competition Report, 32 FCC Rcd at 8968; see also, e.g., T-Mobile Comments at 42-43; AT&T Reply at 4-5; CTIA Reply at 13-14; WIA Reply at 23-24; Crown Castle June 7, 2018 Ex Parte Letter at 15. We do not suggest that viewing wireless service as if it were a single, monolithic offering provided only via traditional wireless towers would have reflected an accurate understanding of the marketplace in the past, even if it might have been somewhat more understandable that courts held such a simplified view at that time. Rather, the current marketplace conditions highlight even more starkly the shortcomings of coverage gap- based approaches, which do not account for other characteristics and deployment strategies. See, e.g., Twentieth Wireless Competition Report, 32 FCC Rcd at 8974-75, para. 12 (observing that “[p]roviders of mobile wireless services typically offer an array of mobile voice and data services,” including “interconnected mobile voice services”); id. at 8997-97, paras. 42-43 (discussing various types of wireless infrastructure deployment to, among 9107

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incompatible with a world where the vast majority of new wireless builds are going to be designed to add network capacity and take advantage of new technologies, rather than plug gaps in network coverage.”97 Moreover, a critical feature of these new wireless builds is to accommodate increased in-building use of wireless services, necessitating deployment of small cells in order to ensure quality service to wireless callers within such buildings.98

41. Likewise, we reject the suggestion of some courts like the Eighth and Ninth Circuits that evidence of an existing or complete inability to offer a telecommunications service is required under 253(a).99 Such an approach is contrary to the material inhibition standard of California Payphone and the correct recognition by courts “that a prohibition does not have to be complete or ‘insurmountable’” to constitute an effective prohibition.100 Commission precedent beginning with California Payphone itself makes clear that an insurmountable barrier is not required to find an effective prohibition under Section 253(a).101 The “effectively prohibit” language must have some meaning independent of the “prohibit” (Continued from previous page)
other things, “improve spectrum efficiency for 4G and future 5G services,” “to fill local coverage gaps, to densify networks and to increase local capacity”).
97 Crown Castle June 7, 2018 Ex Parte Letter at 15; see also id. at 13 (“Densification of networks will be key for augmenting the capacity of existing networks and laying the groundwork for the deployment of 5G.”); id. at 15-16 (“When trying to maximize spectrum re-use and boost capacity, moving facilities by just a few hundred feet can mean the difference between excellent service and poor service. The FCC’s rules, therefore, must account for the effect siting decisions would have on every level of service, including increasing capacity and adding new spectrum bands. Practices and decisions that prevent carriers from doing either materially prohibit the provision of telecommunications service and thus should be considered impermissible under Section 332.”). Contrary approaches appear to occur in part when courts’ policy balancing places more importance on broadly preserving state and local authority than is justified. See, e.g., APT, 196 F.3d at 479; Albemarle County, 211 F.3d at 86; City Council of Virginia Beach, 155 F.3d at 429; National Tower, LLC v. Plainville Zoning Bd. of Appeals, 297 F.3d 14 (1st Cir. 2002); see also, e.g., League of Arizona Cities et al. Joint Comments at 45; Smart Communities Reply at

33. As explained above, our interpretation that “telecommunications services” in Section 253(a) and “personal wireless services” in Section 332(c)(7)(B)(i)(II) are focused on the covered services that providers seek to provide —including the relevant service characteristics they seek to incorporate—not only is consistent with the text of those provisions but better reflects the broader policy goals of the Communications Act and the 1996 Act. 98 See WIA Comments at 39; T-Mobile Comments at 43-44.
99 See, e.g., County of San Diego, 543 F.3d at 577, 579-80; City of St. Louis, 477 F.3d at 533-34; see also, e.g., Virginia Joint Commenters Comments, Exh. A at 39-41. Although the Ninth Circuit in County of San Diego found that “the unambiguous text of §253(a)” precluded a prior Ninth Circuit approach that found an effective prohibition based on broad governmental discretion and the “mere possibility of prohibition,” that holding is not implicated by our interpretations here. County of San Diego, 543 F.3d at 578; cf. City of St. Louis, 477 F.3d at 532. Consequently, those decisions do not preclude the Commission’s interpretations here, see, e.g., Verizon Reply at 7, and we reject claims to the contrary. See, e.g., Smart Communities Comments at 60. 100 City of White Plains, 305 F.3d at 76 (citing RT Commc’ns, 201 F.3d at 1268); see also, e.g., Municipality of Guayanilla, 450 F.3d at 18 (quoting City of White Plains, 305 F.3d at 76 and citing City of Santa Fe, 380 F.3d at 1269); Crown Castle June 7, 2018 Ex Parte Letter at 12; Verizon Aug. 10, 2018 Ex Parte Letter, Attach at 5.

Indeed, the Eighth Circuit’s City of St. Louis decision acknowledges that under Section 253 “[t]he plaintiff need not show a complete or insurmountable prohibition,” even while other aspects of that decision suggest that an insurmountable barrier effectively would be required. City of St. Louis, 477 F.3d at 533 (citing City of White Plains, 305 F.3d at 76).
101 In California Payphone, the Commission concluded that the ordinance at issue “does not ‘prohibit’ the ability of any payphone service provider to provide payphone service in the Central Business District within the meaning of section 253(a),” but went on to evaluate the possibility of an effective prohibition by considering “whether the Ordinance materially inhibits or limits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.” California Payphone, 12 FCC Rcd at 14205, 14206, paras. 28, 31. In the Texas PUC Order, the Commission found that state law build-out requirements would require “substantial financial investment” and a “comparatively high cost per loop sold” in particular areas, interfering with the 9108

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language, and we find that the interpretation of the First, Second, and Tenth Circuits reflects that principle, while being more consistent with the California Payphone standard than the approach of the Eighth and Ninth Circuits.102 The reasonableness of our interpretation that ‘effective prohibition’ does not require a showing of an insurmountable barrier to entry is demonstrated not only by a number of circuit courts’ acceptance of that view, but in the Supreme Court’s own characterization of Section 253(a) as “prohibit[ing] state and local regulation that impedes the provision of ‘telecommunications service.’”103

42. The Eighth and Ninth Circuits’ suggestion that a provider must show an insurmountable barrier to entry in the jurisdiction imposing the relevant regulation is at odds with relevant statutory purposes and goals, as well. Section 253(a) is designed to protect “any entity” seeking to provide telecommunications services from state and local barriers to entry, and Sections 253(b) and (c) emphasize the importance of “competitively neutral” and “nondiscriminatory” treatment of providers.104 Yet focusing on whether the carrier seeking relief faces an insurmountable barrier to entry would lead to disparities in statutory protections among providers based merely on considerations such as their access to capital and the breadth or narrowness of their entry strategies.105 In addition, the Commission has observed in connection with Section 253: “Each local government may believe it is simply protecting the (Continued from previous page)
“statewide entry” plans that new entrants “may reasonable contemplate” in violation of Section 253(a) notwithstanding claims that the specific new entrants at issue had “‘vast resources and access to capital’ sufficient to meet those added costs. Texas PUC Order, 13 FCC Rcd at 3498, para. 78. The Commission also has expressed “great concern” about an exclusive rights-of-way access agreement that “appear[ed] to have the potential to adversely affect the provision of telecommunications services by facilities-based providers, in violation of the provision of section 253(a).” Minnesota Order, 14 FCC Rcd at 21700, para. 3. As another example, in the Western Wireless Order, the Commission stated that a “universal service fund mechanism that provides funding only to ILECs” would likely violate Section 253(a) not because it was insurmountable but because it would “effectively lower the price of ILEC-provided service relative to competitor-provided service” and thus “give customers a strong incentive to choose service from ILECs rather than competitors.” Western Wireless Order, 15 FCC Rcd at 16231, para. 8.
102 We discuss specific applications of the California Payphone standard in the context of certain fees and non-fee regulations in the sections below; we leave others to be addressed case-by-case as they arise or otherwise are taken up by the Commission or courts in the future.
103 Verizon Communications, Inc. v. FCC, 535 U.S. 467, 491 (2002) (emphasis added); see also, e.g., Level 3 Communications, Petition for a Writ of Certiorari, Level 3 Communications, LLC v. City of St. Louis, No. 08-626, at 13 (filed Nov. 7, 2008) (“[T]he term ‘[p]rohibit’ commonly has a less absolute meaning than that adopted below, and properly refers to actions that ‘hold back,’ ‘hinder,’ or ‘obstruct.’” (quoting Random House Webster’s Unabridged Dictionary 1546 (2d ed. 1998)). We thus are not compelled to interpret ‘effective prohibition’ to set the high bar suggested by some commenters based on other dictionary definitions. Smart Communities Petition for Reconsideration, WC Docket No. 17-84, WT Docket No. 17-79 at 7 (filed Sept. 4, 2018). Because we are unpersuaded that the statutory terminology requires us to interpret an effective prohibition as satisfied only by an insurmountable barrier to entry, we likewise reject commenters’ attempts to argue that “effective prohibition” must be understood to set a higher bar by comparison to the “impairment” language in Section 251 of the Act and associated regulatory interpretations of network unbundling requirements taken from that context. Id at 6. In addition, commenters do not demonstrate why the statutory framework and regulatory context of network unbundling under Section 251—and the specific concerns about access by non-facilities-based providers to competitive networks underlying the court precedent they cite—is sufficiently analogous to that of Section 253 and Section 332(c)(7)(B)(i)(II) that statements from that context should inform our interpretation here. See, e.g., AT&T Corp. v. Iowa Utilities Bd., 525 U.S. at 392. In responding to these discrete arguments raised in a petition for reconsideration of the Moratoria Declaratory Ruling that bear on actions we take in this order we do not thereby resolve any of the petition’s arguments with respect to that order. The requests for relief raised in the petition remain pending in full.
104 47 U.S.C. § 253(a), (b), (c).
105 See, e.g., Texas PUC Order, 13 FCC Rcd at 3498, para. 78 (rejecting claims that there should be a higher bar to find an effective prohibition for providers with significant financial resources and recognizing that the effects of the relevant state requirements on a given provider could differ depending on the planned geographic scope of entry). 9109

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interests of its constituents. The telecommunications interests of constituents, however, are not only local. They are statewide, national and international as well. We believe that Congress’ recognition of this fact was the genesis of its grant of preemption authority to this Commission.”106 As illustrated by our consideration of effective prohibitions flowing from state and local fees, there also can be cases where a narrow focus on whether an insurmountable barrier can be shown within the jurisdiction imposing a particular legal requirement would neglect the serious effects that flow through in other jurisdictions as a result, including harms to regional or national deployment efforts.107 B. State and Local Fees

43. Federal courts have long recognized that the fees charged by local governments for the deployment of communications infrastructure can run afoul of the limits Congress imposed in the effective prohibition standard embodied in Sections 253 and 332.108 In Municipality of Guayanilla, for example, the First Circuit addressed whether a city could lawfully charge a 5 percent gross revenue fee.

The court found that the “5% gross revenue fee would constitute a substantial increase in costs” for the provider, and that the ordinance consequently “will negatively affect [the provider’s] profitability.”109 The fee, together with other requirements, thus “place a significant burden” on the provider.110 In light of this analysis, the First Circuit agreed that the fee “‘materially inhibits or limits the ability’” of the provider “‘to compete in a fair and balanced legal and regulatory environment.’”111 The court thus held that the fee does not survive scrutiny under Section 253. In doing so, the First Circuit also noted that the inquiry is not limited to the impact that a fee would have on deployment in the jurisdiction that imposes the fee.

Rather, the court noted the aggregate effect of fees when totaled across all relevant jurisdictions.112 At the same time, the First Circuit did not decide whether the fair and reasonable compensation allowed under Section 253 must be limited to cost recovery or, at the very least, related to the actual use of the ROW.113

44. In City of White Plains, the Second Circuit likewise faced a 5 percent gross revenue fee, which it found to be “[t]he most significant provision” in a franchise agreement implementing an ordinance that the court concluded effectively prohibited service in violation of Section 253.114 While the court noted that “compensation is . . . sometimes used as a synonym for cost,”115 it ultimately did not resolve whether fair and reasonable compensation “is limited to cost recovery, or whether it also extends to a reasonable rent,” relying instead on the fact that “White Plains has not attempted to charge Verizon 106 TCI Cablevision of Oakland County, Inc. Petition for Declaratory Ruling, Preemption and Other Relief Pursuant to 47 U.S.C. §§ 541, 544(e), and 253, Memorandum Opinion and Order, 12 FCC Rcd 21396, 21442, para. 106 (1997) (TCI Cablevision Order).
107 See infra Part III.B.
108 The Commission also has recognized the potential for fees to result in an effective prohibition. See, e.g., Pittencrieff, 13 FCC Rcd at 1751-52, para. 37 (observing that “even a neutral [universal service] contribution requirement might under some circumstances effectively prohibit an entity from offering a service”). 109 Municipality of Guayanilla, 450 F.3d at 18-19.
110 Id. at 19.
111 Id. (quoting City of White Plains, 305 F.3d at 76). 112 Municipality of Guayanilla, 450 F.3d at 17 (looking at the aggregate cost of fees charged across jurisdictions given the interconnected nature of the service).
113 Id. at 22 (“We need not decide whether fees imposed on telecommunications providers by state and local governments must be limited to cost recovery. We agree with the district court’s reasoning that fees should be, at the very least, related to the actual use of rights of way and that ‘the costs [of maintaining those rights of way] are an essential part of the equation.’”).
114 City of White Plains, 305 F.3d at 77.
115 Id. In this context, the court stated that the term “compensation” is “flexible” and capable of different meanings depending on the context in which it is used. Id.
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the fee that it seeks to charge TCG,” thus failing Section 253’s “competitively neutral and nondiscriminatory” standard.116 But the court did observe that “Section 253(c) requires compensation to be reasonable essentially to prevent monopolist pricing by towns.”117

45. In another example, the Tenth Circuit in City of Santa Fe addressed a $6,000 per foot fee set for Qwest’s use of the ROW.118 The court held “that the rental provisions are prohibitive because they create[d] a massive increase in cost” for Qwest.119 The court recognized that Section 253 allows the recovery of cost-based fees, though it ultimately did not decide whether to “measure ‘fair and reasonable’ by the City’s costs or by a ‘totality of circumstances test’” applied in other courts because it determined that the fees at issue were not cost-based and “fail[ed] even the totality of the circumstances test.”120 Consequently, the fee was preempted under Section 253.

46. At the same time, the courts have adopted different approaches to analyzing whether fees run afoul of Section 253, at times failing even to articulate a particular test.121 Among other things, courts have expressed different views on whether Section 253 limits states’ and localities’ fees to recovery of their costs or allows fees set in excess of that level.122 We articulate below the Commission’s interpretation of Section 253(a) and the standards we adopt for evaluating when a fee for Small Wireless Facility deployment is preempted, regardless how the fee is challenged. We also clarify that the Commission interprets Section 332(c)(7)(B)(i)(II) to have the same substantive meaning as Section 253(a).

47. Record Evidence on Costs Associated with Small Wireless Facilities. Keeping pace with the demands on current 4G networks and upgrading our country’s wireless infrastructure to 5G require 116 City of White Plains, 305 F.3d at 79. In particular, the court concluded that “fees that exempt one competitor are inherently not ‘competitively neutral,’ regardless of how that competitor uses its resulting market advantage,” id. at 80, and thus “[a]llowing White Plains to strengthen the competitive position of the incumbent service provider would run directly contrary to the pro-competitive goals of the [1996 Act],” id. at 79. 117 Id.
118 City of Santa Fe, 380 F.3d at 1270-71.
119 Id. at 1271.
120 Id. at 1272 (observing that “[t]he City acknowledges . . . that the rent required by the Ordinance is not limited to recovery of costs”).
121 Compare, e.g., Municipality of Guayanilla, 450 F.3d at 18-19 (finding that fees were significant and had the effect of prohibiting service); City of Santa Fe, 380 F.3d at 1271 (similar); with, e.g., Qwest v. Elephant Butte Irrigation Dist., 616 F. Supp. 2d 1110, 1123-24 (D.N.M. 2008) (rejecting Qwest’s reliance on preceding finding of effective prohibition from quadrupled costs where the fee at issue was a penny per foot); Qwest v. City of Portland, 2006 WL 2679543, *15 (D. Or. 2006) (asserting with no explanation that “a registration fee of $35 and a refundable deposit of $2,000 towards processing expenses . . . could not possibly have the effect of prohibiting Qwest from providing telecommunications services”).
122 For example and as noted above, in Municipality of Guayanilla the First Circuit reserved judgment on whether the fair and reasonable compensation allowed under Section 253 must be limited to cost recovery or if it was sufficient if the compensation was related to the actual use of rights of way. Municipality of Guayanilla, 450 F.3d at

22. Other courts have found reasonable compensation to require cost-based fees. XO Missouri v. City of Maryland Heights, 256 F. Supp. 2d 987, 993-95 (E.D. Mo. 2003) (City of Maryland Heights); Bell Atlantic–Maryland, Inc. v.

Prince George’s County, 49 F. Supp. 2d 805, 818 (D. Md. 1999) (Prince George’s County) vacated on other grounds, 212 F.3d 863 (4th Cir. 2000). Still other courts have applied a test that weighs a number of considerations when evaluating whether compensation is fair and reasonable. TCG Detroit v. City of Dearborn, 206 F.3d 618, 625 (6th Cir. 2000) (City of Dearborn) (considering “the amount of use contemplated . . . the amount that other providers would be willing to pay . . . and the fact that TCG had agreed in earlier negotiations to a fee almost identical to what it now was challenging as unfair”).
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the deployment of many more Small Wireless Facilities.123 For example, Verizon anticipates that network densification and the upgrade to 5G will require 10 to 100 times more antenna locations than currently exist. AT&T estimates that providers will deploy hundreds of thousands of wireless facilities in the next few years alone—equal to or more than the number providers have deployed in total over the last few decades.124 Sprint, in turn, has announced plans to build at least 40,000 new small sites over the next few years.125 A report from Accenture estimates that, overall, during the next three or four years, 300,000 small cells will need to be deployed—a total that it notes is “roughly double the number of macro cells built over the last 30 years.”126

48. The many-fold increase in Small Wireless Facilities will magnify per-facility fees charged to providers. Per-facility fees that once may have been tolerable when providers built macro towers several miles apart now act as effective prohibitions when multiplied by each of the many Small Wireless Facilities to be deployed. Thus, a per-facility fee may affect a prohibition on 5G service or the densification needed to continue 4G service even if that same per-facility fee did not effectively prohibit previous generations of wireless service.

49. Cognizant of the changing technology and its interaction with regulations created for a previous generation of service, the 2017 Wireline Infrastructure NPRM/NOI sought comment on whether government-imposed fees could act as a prohibition within the meaning of Section 253, and if so, what fees would qualify for 253(c)’s savings clause.127 The 2017 Wireless Infrastructure NPRM/NOI similarly sought comment on the scope of Sections 253 and 332(c)(7) and on any new or updated guidance the Commission should provide, potentially through a Declaratory Ruling.128 In particular, the Commission sought comment on whether it should provide further guidance on how to interpret and apply the phrase “prohibit or have the effect of prohibiting.”129

50. We conclude that ROW access fees, and fees for the use of government property in the ROW,130 such as light poles, traffic lights, utility poles, and other similar property suitable for hosting 123 See CTIA June 27, 2018 Ex Parte Letter at 6 (“[s]mall cell technology is needed to support 4G densification and 5G connectivity.”); see also Accelerating Wireless Deployment by Removing Barriers to Infrastructure Investment, Report and Order, 32 FCC Rcd 9760, 9765, para. 12 (2017) (2017 Pole Replacement Order) (recognizing that Small Wireless Facilities will be increasingly necessary to support the rollout of next-generation services). 124 See Verizon Comments at 3; AT&T Comments at 1.
125 See Letter from Keith C. Buell, Senior Counsel, Sprint, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 2 (filed Feb. 21, 2018).
126 Accelerating Future Economic Value Report at 6; see also Deloitte 5G Paper. 127 Accelerating Wireline Broadband Deployment by Removing Barriers to Infrastructure Investment, Notice of Proposed Rulemaking and Notice of Inquiry, 32 FCC Rcd 3266, 3296-97, paras. 100 -101 and 3298-99, paras. 104- 105 (2017).
128 Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3360, para. 87. In addition, in 2016, the Wireless Telecommunications Bureau released a public notice seeking comment on ways to expedite the deployment of next generation wireless infrastructure, including providing guidance on application processing fees and charges for use of rights of way. See Streamlining Deployment of Small Cell Infrastructure by Improving Wireless Facilities Siting Policies, Public Notice, 31 FCC Rcd 13360 (WTB 2016).
129 Wireless Infrastructure NPRM/NOI, 32 FCC Rcd at 3362, para. 90. 130 We do not find these fees to be taxes within the meaning of Section 601(c)(2) of the 1996 Act. See, e.g., Smart Communities Reply at 36 (quoting the savings clause for “State or local law pertaining to taxation” in Section 601(c)(2) of the 1996 Act). It is ambiguous whether a fee charged for access to ROWs should be viewed as a tax for purposes of Section 601(c)(2) of the 1996 Act. See, e.g., City of Dallas v. FCC, 118 F.3d 393, 397-98 (5th Cir. 1997) (distinguishing “the price paid to rent use of public right-of-ways” from a “tax” and citing similar precedent).

Given that Congress clearly contemplated in Section 253(c) that states’ and localities’ fees for access to ROWs could be subject to preemption where they violate Section 253—or else the savings clause in that regard would be superfluous—we find the better view is that such fees do not represent a tax encompassed by Section 601(c)(2) of 9112

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Small Wireless Facilities, as well as application or review fees and similar fees imposed by a state or local government as part of their regulation of the deployment of Small Wireless Facilities inside and outside the ROW, violate Sections 253 or 332(c)(7) unless these conditions are met: (1) the fees are a reasonable approximation of the state or local government’s costs,131 (2) only objectively reasonable costs are factored into those fees, and (3) the fees are no higher than the fees charged to similarly-situated competitors in similar situations.132

51. We base our interpretation on several considerations, including the text and structure of the Act as informed by legislative history, the economics of capital expenditures in the context of Small Wireless Facilities (including the manner in which capital budgets are fixed ex ante), and the extensive record evidence that shows the actual effects that state and local fees have in deterring wireless providers from adding to, improving, or densifying their networks and consequently the service offered over them (including, but not limited to, introducing next-generation 5G wireless service). We address each of these considerations in turn.

52. Text and Structure. We start our analysis with a consideration of the text and structure of Section 253. That section contains several related provisions that operate in tandem to define the roles that Congress intended the federal government, states, and localities to play in regulating the provision of telecommunications services. Section 253(a) sets forth Congress’s intent to preempt state or local legal requirements that “prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service.”133 Section 253(b), in turn, makes clear Congress’s intent that state “requirements necessary to preserve and advance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services, and safeguard the rights (Continued from previous page)
the 1996 Act. We do not address whether particular fees could be considered taxes under other statutes not administered by the FCC, but we reject the suggestion that tests courts use to determine what constitute “taxes” in the context of such other statutes should apply to the Commission’s interpretation of Section 601(c)(2) here in light of the statutory context for Section 601(c)(2) in the 1996 Act and the Communications Act discussed above. See, e.g., Qwest Corp. v. City of Surprise, 434 F.3d 1176, 1183-84 & n.3 (9th Cir. 2006) (holding that particular fees at issue there were taxes for purposes of the Tax Injunction Act and stating in dicta that had the Tax Injunction Act not applied it would agree with the conclusion of the district court that it was covered by Section 601(c)(2) of the 1996 Act); MCI Communications Services, Inc. v. City of Eugene, 359 F. Appx. 692, 696 (9th Cir. 2009) (asserting without analysis that the same test would apply to determine if a fee constitutes a tax under both the Tax Injunction Act and Section 601(c)(2) of the 1996 Act).
131 By costs, we mean those costs specifically related to and caused by the deployment. These include, for instance, the costs of processing applications or permits, maintaining the ROW, and maintaining a structure within the ROW.

See Puerto Rico Tel. Co. v. Municipality of Guayanilla, 354 F. Supp. 2d 107, 114 (D.P.R. 2005) (Guayanilla District Ct. Opinion), aff'd, 450 F.3d 9 (1st Cir. 2006) (“fees charged by a municipality need to be related to the degree of actual use of the public rights-of way” to constitute fair and reasonable compensation under Section 253(c)).
132 We explain above what we mean by “fees.” See supra note 71. Contrary to some claims, we are not asserting a “general ratemaking authority.” Virginia Joint Commenters Comments at 6. Our interpretations in this order bear on whether and when fees associated with Small Wireless Facility deployment have the effect of prohibiting wireless telecommunications service and thus are subject to preemption under Section 253(a), informed by the savings clause in Section 253(c). While that can implicate issues surrounding how those fees were established, it does so only to the extent needed to vindicate Congress’s intent in Section 253. We do not interpret Section 253(a) or (c) to authorize the regulation or establishment of state and local fees as an exercise in itself. We likewise are not persuaded by undeveloped assertions that the Commission’s interpretation of Section 253 in the context of fees would somehow violate constitutional separation of powers principles. See, e.g., Virginia Joint Commenters Comments, Exh. A at 52.
133 47 U.S.C. § 253(a).
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of consumers” are not preempted.134 Of particular importance in the fee context, Section 253(c) reflects a considered policy judgment that “[n]othing in this section” shall prevent states and localities from recovering certain carefully delineated fees. Specifically, Section 253(c) makes clear that fees are not preempted that are “fair and reasonable” and imposed on a “competitively neutral and nondiscriminatory basis,” for “use of public rights-of-way on a “nondiscriminatory basis,” so long as they are “publicly disclosed” by the government.135 Section 253(d), in turn, provides one non-exclusive mechanism by which a party can obtain a determination from the Commission of whether a specific state or local requirement is preempted under Section 253(a)—namely, by filing a petition with the Commission.136

53. In reviewing this statutory scheme, the Commission previously has construed Section 253(a) as “broadly limit[ing] the ability of state[s] to regulate,” while the remaining subsections set forth “defined areas in which states may regulate.”137 We reaffirm this conclusion, consistent with the view of most courts to have considered the issue—namely, that Sections 253(b) and (c) make clear that certain state or local laws, regulations, and legal requirements are not preempted under the expansive scope of Section 253(a).138 Our interpretation of Section 253(a) is informed by this statutory context,139 and the observation of courts that when a preemption provision precedes a narrowly-tailored savings clause, it is reasonable to infer that Congress intended a broad preemptive scope.140 We need not decide today whether Section 253(a) preempts all fees not expressly saved by Section 253(c) with respect to all types of deployments. Rather, we conclude, based on the record before us, that with respect to Small Wireless Facilities, even fees that might seem small in isolation have material and prohibitive effects on deployment,141 particularly when considered in the aggregate given the nature and volume of anticipated Small Wireless Facility deployment.142 Against this backdrop, and in light of significant evidence, set forth herein, that Congress intended Section 253 to preempt legal requirements that effectively prohibit service, including wireless infrastructure deployment, we view the substantive standards for fees that Congress sought to insulate from preemption in Section 253(c) as an appropriate ceiling for state and local fees that apply to the deployment of Small Wireless Facilities in public ROWs.143 134 47 U.S.C. § 253(b).
135 47 U.S.C. § 253(c).
136 47 U.S.C. § 253(d).
137 Texas PUC Order, 13 FCC Rcd at 3481, para. 44.
138 See, e.g., Connect America Fund; Sandwich Isles Communications, Inc., Memorandum Opinion and Order, 32 FCC Rcd 5878, 5881, 5885-87, paras. 8, 19-25 (2017) (Sandwich Isles Section 253 Order); Texas PUC Order, 13 FCC Rcd at 3480-81, paras. 41-44; Global Network Commc’ns, Inc. v. City of New York, 562 F.3d 145, 150-51 (2d Cir. 2009); Southwestern Bell Tel. Co. v. City of Houston, 529 F.3d 257, 262 (5th Cir. 2008); City of St. Louis, 477 F.3d at 531-32 (8th Cir. 2007); Municipality of Guayanilla, 450 F.3d at 15-16; City of Santa Fe, 380 F.3d at 1269; BellSouth Telecomm’s, Inc. v. Town of Palm Beach, 252 F.3d 1169, 1187-89 (11th Cir. 2001). Some courts appear to have viewed Section 253(c) as an independent basis for preemption. See, e.g., City of Dearborn, 206 F.3d at 624 (after concluding that a franchise fee did not violate Section 253(a), going on to evaluate whether it was “fair and reasonable” under Section 253(c)). We find more persuasive the Commission and other court precedent to the contrary, which we find better adheres to the statutory language. 139 See, e.g., Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2442 (2014). 140 See, e.g., Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41, 44-45 (1987); City of New York v. Permanent Mission of India to United Nations, 618 F.3d 172, 189-90 (2d Cir. 2010); Frank v. Delta Airlines, Inc., 314 F.3d 195, 199 (5th Cir. 2002); cf. United States v. Kay, 359 F.3d 738 (5th Cir. 2004) (justifying a broad reading of a statute given that Congress “narrowly defin[ed] exceptions and affirmative defenses against a backdrop of broad applicability”). 141 See infra paras. 62-63.
142 See, e.g., Wireless Infrastructure Second R&O, FCC 18-30, at para. 64. 143 See, e.g., Verizon Aug. 10, 2018 Ex Parte Letter, Attach. at 9-10. We therefore reject the view of those courts that have concluded that Section 253(a) necessarily requires some additional showing beyond the fact that a particular fee is not cost-based. See, e.g., Qwest v. City of Berkeley, 433 F.3d 1253, 1257 (9th Cir. 2006) (“we 9114

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54. In addition, notwithstanding that Section 253(c) only expressly governs ROW fees, we find it appropriate to look to its substantive standards as a ceiling for other state and local fees addressed by this Declaratory Ruling.144 For one, our evaluation of the material effects of fees on the deployment of Small Wireless Facilities does not differ whether the fees are for ROW access, use of government property within the ROW, or one-time application and review fees or the like—any of which drain limited capital resources that otherwise could be used for deployment—and we see no reason why the Act would tolerate a greater prohibitory effect in the case of application or review fees than for ROW fees.145 In addition, elements of the substantive standards for ROW fees in Section 253(c) appear at least analogous to elements of the California Payphone standard for evaluating an effective prohibition under Section 253(a). In pertinent part, both incorporate principles focused on the legal requirements to which a provider may be fairly subject,146 and seek to guard against competitive disparities.147 Without resolving the precise interplay of those concepts in Section 253(c) and the California Payphone standard, their similarities support our use of the substantive standards of Section 253(c) to inform our evaluation of fees at issue here that are not directly governed by that provision.

55. From the foregoing analysis, we can derive the three principles that we articulate in this Declaratory Ruling about the types of fees that are preempted. As explained in more detail below, we also interpret Section 253(c)’s “fair and reasonable compensation” provision to refer to fees that represent a reasonable approximation of actual and direct costs incurred by the government, where the costs being passed on are themselves objectively reasonable.148 Although there is precedent that “fair and reasonable” compensation could mean not only cost-based charges but also market-based charges in certain instances,149 the statutory context persuades us to adopt a cost-based interpretation here. In particular, while the general purpose of Section 253(c) is to preserve certain state and local conduct from preemption, it includes qualifications and limitations to cabin state and local action under that savings clause in ways that ensure appropriate protections for service providers. The reasonableness of interpreting the qualifications and limitations in the Section 253(c) savings clause as designed to protect the interests of service providers is emphasized by the statutory language. The “competitively neutral and (Continued from previous page)
decline to read” prior Ninth Circuit precedent “to mean that all non-cost based fees are automatically preempted, but rather that courts must consider the substance of the particular regulation at issue”). At the same time, our interpretation does not take the broader view of the preemptive scope of Section 253 adopted by the Sixth Circuit, which interpreted Section 253(c) as an independent prohibition on conduct that is not itself prohibited by Section 253(a). City of Dearborn, 206 F.3d at 624.
144 See supra note 71.
145 Cf. Cheney R. Co. v. ICC, 902 F.2d 66, 69 (D.C. Cir. 1990) (observing that the expressio unius canon is a “feeble helper in an administrative setting, where Congress is presumed to have left to reasonable agency discretion questions that it has not directly resolved,” and concluding there that “Congress's mandate in one context with its silence in another suggests not a prohibition but simply a decision not to mandate any solution in the second context, i.e., to leave the question to agency discretion”).
146 For ROW compensation to be saved under Section 253(c) it must be “fair and reasonable,” while the California Payphone standard looks to whether a legal requirement “materially limits or inhibits” the ability to compete in a “fair” legal environment for a covered service. California Payphone, 12 FCC Rcd at 14206, para. 31. 147 For ROW compensation to be saved under Section 253(c) it also must be “competitively neutral and nondiscriminatory,” while the California Payphone standard also looks to whether a legal requirement “materially limits or inhibits” the ability to compete in a “balanced” legal environment for a covered service. California Payphone, 12 FCC Rcd at 14206, para. 31.
148 See infra paras. 69-77; see also, e.g., City of Maryland Heights, 256 F. Supp. 2d at 993-95; Bell Atlantic– Maryland, 49 F. Supp. 2d at 818.
149 See, e.g., NetCoalition v. SEC, 615 F.3d 525 (D.C. Cir. 2010) (statute did not unambiguously require the SEC to interpret “fair and reasonable” to mean cost-based, and the SEC’s reliance on market-based rates as “fair and reasonable” where there was competition was a reasonable interpretation). 9115

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nondiscriminatory” and public disclosure qualifications in Section 253(c) appear most naturally understood as protecting the interest of service providers from fees that otherwise would have been saved from preemption under Section 253(c) absent those qualifiers. Under the noscitur a sociis canon of statutory interpretation, that context persuades us that the “fair and reasonable” qualifier in Section 253(c) similarly should be understood as focused on protecting the interest of providers.150 As discussed in greater detail below, while it might well be fair for providers to bear basic, reasonable costs of entry,151 the record does not reveal why it would be fair or reasonable from the standpoint of protecting providers to require them to bear costs beyond that level, particularly in the context of the deployment of Small Wireless Facilities. In addition, the text of Section 253(c) provides that ROW access fees must be imposed on a “competitively neutral and nondiscriminatory basis.” This means, for example, that fees charged to one provider cannot be materially higher than those charged to a competitor for similar uses.152

56. Other considerations support our approach, as well. By its terms, Section 253(a) preempts state or local legal requirements that “prohibit” or have the “effect of prohibiting” the provision of services, and we agree with court precedent that “[m]erely allowing the [local government] to recoup its processing costs . . . cannot in and of itself prohibit the provision of services.”153 The Commission has long understood that Section 253(a) is focused on state or local barriers to entry for the provision of service,154 and we conclude that states and localities do not impose an unreasonable barrier to entry when they merely require providers to bear the direct and reasonable costs caused by their decision to enter the market. 155 We decline to interpret a government’s recoupment of such fundamental costs of entry as having the effect of prohibiting the provision of services, nor has any commenter argued that recovery of cost by a government would prohibit service in a manner restricted by Section 253(a).156 Reasonable state and local regulation of facilities deployment is an important predicate for a viable marketplace for 150 See, e.g., Life Technologies Corp. v. Promega Corp., 137 S. Ct. 734 (2017) (“A word is given more precise content by the neighboring words with which it is associated.” (internal alteration and quotation marks omitted)). 151 See infra para. 56.
152 See, e.g., City of White Plains, 305 F.3d at 80.
153 City of Santa Fe, 380 F.3d at 1269; see also Verizon Comments at 17. 154 See, e.g., Sandwich Isles Section 253 Order, 32 FCC Rcd at 5878, 5882-83, paras. 1, 13; Western Wireless Order, 15 FCC Rcd at 16231, para. 8; Petition of the State of Minnesota for a Declaratory Ruling regarding the Effect of Section 253 on an Agreement to Install Fiber Optic Wholesale Transport Capacity in State Freeway Rights of Way, Memorandum Opinion and Order, 14 FCC Rcd 21697, 21707, para. 18 (Minnesota Order); Hyperion Order, 14 FCC Rcd at 11070, para. 13; Texas PUC Order, 13 FCC Rcd at 3480, para. 41; TCI Cablevision Order, 12 FCC Rcd at 21399, para. 7; California Payphone, 12 FCC Rcd at 14209, para. 38; see also, e.g., AT&T Comm’ns of the Sw. v.

City of Dallas, 8 F. Supp. 2d 582, 593 (N.D. Tx. 1998) (AT&T v. City of Dallas) (“[A]ny fee that is not based on AT&T’s use of City rights-of-way violates § 253(a) of the FTA as an economic barrier to entry.”); Verizon Comments at 11-12; Verizon Aug. 10, 2018 Ex Parte Letter, Attach. at 7. Because we view the California Payphone standard as reflecting a focus on barriers to entry, we decline requests to adopt a distinct, additional standard with that as an explicit focus. See, e.g., T-Mobile Comments at 35. 155 See, e.g., Implementation of Section 224 of the Act, Report and Order and Order on Reconsideration, 26 FCC Rcd 5240, 5301-03, paras. 142-45 (2011) (rejecting an approach to defining a lower bound rate for pole attachments that “would result in pole rental rates below incremental cost” as contrary to cost causation principles); Investigation of Interstate Access Tariff Non-Recurring Charges, Memorandum Opinion and Order, 2 FCC Rcd 3498, 3502, para. 34 (1987) (observing in the rate regulation context that “the public interest is best served, and a competitive marketplace is best encouraged, by policies that promote the recovery of costs from the cost-causer”). Our interpretation limiting states and localities to the recovery of a reasonable approximation of objectively reasonable cost also takes into account state and local governments’ exclusive control over access to the ROW. 156 For example, Verizon states that “[a]lthough any fee could be said to raise the cost of providing service,” Verizon Aug. 10, 2018 Ex Parte Letter, Attach. at 9, “[t]he Commission should interpret . . . Section 253(a) to allow cost- based fees for access to public rights-of-way and structures within them, but to prohibit above-cost fees that generate revenue in excess of state and local governments’ actual costs.” Id., Attach. at 6. 9116

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communications services by protecting property rights and guarding against conflicting deployments that could harm or otherwise interfere with others’ use of property.157 By contrast, fees that recover more than the state or local costs associated with facilities deployment—or that are based on unreasonable costs, such as exorbitant consultant fees or the like—go beyond such governmental recovery of fundamental costs of entry. In addition, interpreting Section 253(a) to prohibit states and localities from recovering a reasonable approximation of reasonable costs could interfere with the ability of states to exercise the police powers reserved to them under the Tenth Amendment.158 We therefore conclude that Section 253(a) is circumscribed to permit states and localities to recover a reasonable approximation of their costs related to the deployment of Small Wireless Facilities.

57. Commission Precedent. We draw further confidence in our conclusions from the Commission’s California Payphone decision, which we reaffirm here, finding that a state or local legal requirement would violate Section 253(a) if it “materially limits or inhibits” an entity’s ability to compete in a “balanced” legal environment for a covered service.159 As explained above, fees charged by a state or locality that recover the reasonable approximation of reasonable costs do not “materially inhibit” a provider’s ability to compete in a “balanced” legal environment. To the contrary, those costs enable localities to recover their necessary expenditures to provide a stable and predictable framework in which market participants can enter and compete. On the other hand, in the Texas PUC Order interpreting California Payphone, the Commission concluded that state or local legal requirements such as fees that impose a “financial burden” on providers can be effectively prohibitive.160 As the record shows, excessive state and local governments’ fees assessed on the deployment of Small Wireless Facilities in the ROW in fact materially inhibit the ability of many providers to compete in a balanced environment.161

58. California Payphone and Texas PUC separately support the conclusion that fees cannot be discriminatory or introduce competitive disparities, as such fees would be inconsistent with a “balanced” regulatory marketplace. Thus, fees that treat one competitor materially differently than other competitors in similar situations are themselves grounds for finding an effective prohibition—even in the case of fees that are a reasonable approximation of the actual and reasonable costs incurred by the state or locality. Indeed, the Commission has previously recognized the potential for subsidies provided to one 157 See, e.g., TCI Cablevision Order, 12 FCC Rcd at 21441, para. 103; see also, e.g., Garrett Hardin, The Tragedy of the Commons, 162 SCI. 1243 (1968). States’ or localities’ regulation premised on addressing effects of deployment besides these costs caused by facilities deployment are distinct issues, which we discuss below. See infra Part III.C. 158 The Supreme Court has recognized that land use regulation can involve an exercise of police powers. See, e.g., Hodel v. Va. Surface Min. & Reclamation Ass’n, Inc., 452 U.S. 264, 289 (1981). As that Court observed, “[i]t would . . . be a radical departure from long-established precedent for this Court to hold that the Tenth Amendment prohibits Congress from displacing state police power laws regulating private activity.” Id. at 292. At the same time, the Court also has held that “historic police powers of the States” are not to be preempted by federal law “unless that was the clear and manifest purpose of Congress.” Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 605 (1991) (internal quotation marks omitted). As relevant here, we see no clear and manifest intent that Congress intended to preempt publicly disclosed, objectively reasonable cost-based fees imposed on a nondiscriminatory basis, particularly in light of Section 253(c). 159 We disagree with suggestions that the Commission applied an additional and more stringent “commercial viability” test in California Payphone. See, e.g., Crown Castle June 7, 2018 Ex Parte Letter at 10. Instead, the Commission was simply evaluating the Section 253 petition on its own terms, see, e.g., California Payphone, 12 FCC Rcd at 14204, 14210, paras. 27, 41, and, without purporting to define the bounds of Section 253(a), explaining that the petitioner “ha[d] not sufficiently supported its allegation” that the provision of service at issue “would be ‘impractical and uneconomic.’” Id. at 14210, para. 41. Confirming that this language was simply the Commission’s short-hand reference to arguments put forward by the petitioner itself, and not a Commission-announced standard for applying Section 253, the Commission has not applied a “commercial viability” standard in other decisions, as these same commenters recognize. See, e.g., Crown Castle June 7, 2018 Ex Parte Letter at 10. 160 Texas PUC Order, 13 FCC Rcd at 3466, 3498-500, paras. 13, 78-81. 161 See infra paras. 60-65.
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competitor to distort the marketplace and create a barrier to entry in violation of Section 253(a).162 We reaffirm that conclusion here.

59. Legislative History. While our interpretation follows directly from the text and structure of the Act, our conclusion finds further support in the legislative history, which reflects Congress’s focus on the ability of states and localities to recover the reasonable costs they incur in maintaining the rights of way.163 Significantly, Senator Dianne Feinstein, during the floor debate on Section 253(c), “offered examples of the types of restrictions that Congress intended to permit under Section 253(c), including [to] ‘require a company to pay fees to recover an appropriate share of the increased street repair and paving costs that result from repeated excavation.’”164 Representative Bart Stupak, a sponsor of the legislation, similarly explained during the debate on Section 253 that “if a company plans to run 100 miles of trenching in our streets and wires to all parts of the cities, it imposes a different burden on the right-of- way than a company that just wants to string a wire across two streets to a couple of buildings,” making clear that the compensation described in the statute is related to the burden, or cost, from a provider’s use of the ROW.165 These statements buttress our interpretation of the text and structure of Section 253 and confirm Congress’s apparent intent to craft specific safe harbors for states and localities, and to permit recovery of reasonable costs related to the ROW as “fair and reasonable compensation,” while preempting fees above a reasonable approximation of cost that improperly inhibit service.166

60. Capital Expenditures. Apart from the text, structure, and legislative history of the 1996 Act, an additional, independent justification for our interpretation follows from the simple, logical premise, supported by the record, that state and local fees in one place of deployment necessarily have the effect of reducing the amount of capital that providers can use to deploy infrastructure elsewhere, whether the reduction takes place on a local, regional or national level.167 We are persuaded that providers and infrastructure builders, like all economic actors, have a finite (though perhaps fluid)168 amount of resources to use for the deployment of infrastructure. This does not mean that these resources are limitless, however. We conclude that fees imposed by localities, above and beyond the recovery of localities’ reasonable costs, materially and improperly inhibit deployment that could have occurred elsewhere.169 This and regulatory uncertainty created by such effectively prohibitive conduct170 creates an 162 See, e.g., Western Wireless Order, 15 FCC Rcd at 16231, para. 8. 163 See, e.g., WIA Comments, Attach. 2 at 70.
164 WIA Comments, Attach. 2 at 70 (quoting 141 Cong. Rec. S8172 (daily ed. June 12, 1995) (statement of Sen.

Feinstein, quoting letter from Office of City Attorney, City and County of San Francisco)) (emphasis added)); see also, e.g., Verizon Comments at 15 (similar); City of Maryland Heights, 256 F. Supp. 2d at 995-96. 165 141 Cong. Rec. H8460-01, H8460 (daily ed. Aug. 4, 1995). 166 We reject other comments downplaying the relevance of legislative statements by some commenters as inconsistent with the text and structure of the Act. See, e.g., League of Arizona Cities et al. Joint Comments at 27- 28; NATOA Comments, Exh. A at 26-28; Smart Communities Reply at 57-58; Cities of San Antonio et al. Reply at 20-21; see also, e.g., City of Portland v. Electric Lightwave, Inc., 452 F. Supp. 2d 1049, 1071-72 (D. Or. 2005). 167 At a minimum, this analysis complements and reinforces the justifications for our interpretation provided above.

While the relevant language of Section 253(a) and Section 332(c)(7)(B)(i)(II) is not limited just to Small Wireless Facilities, we proceed incrementally in our Declaratory Ruling here and address the record before us, which indicates that our interpretation of the effective prohibition standard here is particularly reasonable in the context of Small Wireless Facility deployment.
168 For example, the precise amount of these resources might shift as a service provider encounters unexpected costs, recovers costs passed on to subscribers, or earns a profit above those costs. 169 As Verizon observes, “[a] number of states enacted infrastructure legislation because they determined that rate relief was necessary to ensure wireless deployment,” and thus could be seen as having “acknowledged that excessive fees impose a substantial barrier to the provision of service.” Verizon Aug. 10, 2018 Ex Parte Letter, Attach. at 7-8.

In view of the evidence in the record regarding the effect of state and local fees on capital expenditures, see, e.g., Corning Sept. 5, 2018 Ex Parte Letter (noting that cost savings from reduced small cell attachment and application 9118

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appreciable impact on resources that materially limits plans to deploy service. This record evidence emphasizes the importance of evaluating the effect of fees on Small Wireless Facility deployment on an aggregate basis. Consistent with the First Circuit’s analysis in Municipality of Guayanilla, the record persuades us that fees associated with Small Wireless Facility deployment lead to “a substantial increase in costs”—particularly when considered in the aggregate—thereby “plac[ing] a significant burden” on carriers and materially inhibiting their provision of service contrary to Section 253 of the Act.171

61. The record is replete with evidence that providers have limited capital budgets that are constrained by state and local fees.172 As AT&T explains, “[a]ll providers have limited capital dollars to invest, funds that are quickly depleted when drained by excessive ROW fees.”173 AT&T added that “[c]ompetitive demands will force carriers to deploy small cells in the largest cities. But, when those largest cities charge excessive fees to access ROWs and municipal ROW structures, carriers’ finite capital dollars are prematurely depleted, leaving less for investment in mid-level cities and smaller communities.

Larger municipalities have little incentive to not overcharge, and mid-level cities and smaller (Continued from previous page)
fees could result in $2.4 billion in capital expenditure and that 97% of this capital expenditure would go toward investments in rural and suburban areas), we disagree with arguments that fees do not affect the deployment of wireless facilities in rural and underserved areas. See, e.g., Letter from Sam Liccardo, Mayor, City of San Jose, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 4 (filed Sept. 18, 2018) (City of San Jose Sept. 18, 2018 Ex Parte Letter) (stating that “whether or not a provider wishes to invest in a dense urban area, including underserved urban areas, or a rural area is fundamentally based on the size of the customer base and the market demand for service-not on the purported wiles of a ‘must-serve’ jurisdiction somehow forcing investment away from rural areas because a right of way or attachment fee is charged.”); Letter from Joanne Hovis, Chief Executive Officer, Coalition for Local Internet Choice, James Baller, President, Coalition for Local Internet Choice, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, Attach. at 3 (filed Sept. 18, 2018) (“in lucrative areas, carriers will pay market fees for access to property just as they would any other cost of doing business. But they will not, as rational economic actors, necessarily apply new profits (created by FCC preemption) to deploying in otherwise unattractive areas.”).
170 See, e.g., CTIA Comments at 32 (identifying “disparate interpretations” regarding the fees that are preempted and seeking FCC clarification to “dispel the resulting uncertainty”); Verizon Comments at 10 (similar); Letter from Cathleen A. Massey, Vice Pres.-Fed. Regulatory Affairs, T-Mobile, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79, Attach. at 7 (filed Sept. 21, 2017) (seeking clarification of Section 253); BDAC Regulatory Barriers Report, p. 9 (“The FCC should provide guidance on what constitutes a fee that is excessive and/or duplicative, and that therefore is not ‘fair and reasonable.’ The Commission should specifically clarify that ‘fair and reasonable’ compensation for right-of way access and use implies some relation to the burden of new equipment placed in the ROW or on the local asset, or some other objective standard.”). 171 Municipality of Guayanilla, 450 F.3d at 19.
172 See, e.g., AT&T Comments at 2; Conterra Broadband et al. Comments at 6; Mobilitie Comments at 3; Sprint Comments at 17; Letter from Courtney Neville, Associate General Counsel, Competitive Carriers Association, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 2-3 (filed July 16, 2018) (CCA July 16, 2018 Ex Parte Letter); Letter from Henry Hultquist, Vice President, Federal Regulatory, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 2 (filed June 8, 2018) (AT&T June 8, 2018 Ex Parte Letter); Crown Castle June 7, 2018 Ex Parte Letter at 2; Letter from Katharine R. Saunders, Managing Associate General Counsel, Federal Regulatory and Legal Affairs, Verizon, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 2 (filed June 21, 2018) (Verizon June 21, 2018 Ex Parte Letter); Letter from Ronald W. Del Sesto, Jr., Counsel for Uniti Fiber, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 5 (filed Oct. 30, 2017); Verizon Aug. 10, 2018 Ex Parte Letter, Attach. at 2-4. When developing capital budgets, companies rationally would account for anticipated revenues associated with the services that can be provided by virtue of planned facilities deployment, and the record does not reveal—nor do we see any basis to assume—that such revenues would be so great as to eliminate constraints on providers’ capital budgets so as to enable full deployment notwithstanding the level of state and local fees. 173 AT&T Aug. 6, 2018 Ex Parte Letter at 2.
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municipalities have no ability to avoid this harm.”174 As to areas that might not be sufficiently crucial to deployment to overcome high fees, AT&T identified jurisdictions in Maryland, California, and Massachusetts where high fees have directly resulted in paused or decreased deployments.175 Limiting localities to reasonable cost recovery will “allow[] AT&T and other providers to stretch finite capital dollars to additional communities.”176 Verizon similarly explains that “[c]apital budgets are finite. When providers are forced to spend more to deploy infrastructure in one locality, there is less money to spend in others. The leverage that some cities have to extract high fees means that other localities will not enjoy next generation wireless broadband services as quickly, if at all.”177 Sprint, too, affirms that, because “all carriers face limited capital budgets, they are forced to limit the number and pace of their deployment investments to areas where the delays and impediments are the least onerous, to the detriment of their customers and, ultimately and ironically, to the very jurisdictions that imposed obstacles in the first place.”178 Sprint gives a specific example of its deployments in two adjacent jurisdictions—the City of Los Angeles and Los Angeles County—and describes how high fees in the county prevented Sprint from activating any small cells there, while more than 500 deployments occurred in the city, which had significantly lower fees.179 Similarly, Conterra Broadband states that “[w]hen time and capital are diverted away from actual facility installation and instead devoted to clearing regulatory roadblocks, consumers and enterprises, including local small businesses, schools and healthcare centers, suffer.”180 Based on the record, we find that fees charged by states and localities are causing actual delays and restrictions on deployments of Small Wireless Facilities in a number of places across the country in violation of Section 253(a).181

62. Our conclusion finds further support when one considers the aggregate effects of fees imposed by individual localities, including, but not limited to, the potential limiting implications for a nationwide wireless network that reaches all Americans, which is among the key objectives of the statutory provisions in the 1996 Act that we interpret here.182 When evaluating whether fees result in an effective prohibition of service due to financial burden, we must consider the marketplace regionally and nationally and thus must consider the cumulative effects of state or local fees on service in multiple geographic areas that providers serve or potentially would serve. Where providers seek to operate on a regional or national basis, they have constrained resources for entering new markets or introducing, expanding, or improving existing services, particularly given that a provider’s capital budget for a given 174 Id.
175 Id. (pausing or delaying deployments in Citrus Heights, CA, Oakland, CA and three Maryland counties; decreasing deployments in Lowell, MA and decreasing deployments from 98 to 25 sites in Escondido, CA). 176 Id.
177 Verizon Aug. 10, 2018 Ex Parte Letter at 5, Attach. at 2-4. 178 Sprint Comments at 17.
179 Sprint Aug. 13, 2018 Ex Parte Letter at 1-2.
180 Conterra Broadband et al. Comments at 6; see also Letter from John Scott, Counsel for Mobilitie, LLC to Marlene Dortch, Secretary, FCC, WT Docket No. 17-79, at 2 (“high fees imposed by some cities hurt other cities that have reasonable fees, because they reduce capital resources that might have gone to those cities, and because they pressure other financially strapped cities not to turn away what appears to be a revenue opportunity”). 181 Letter from Kenneth J. Simon, Senior Vice President and General Counsel, Crown Castle, to Marlene H. Dortch, Secretary, FCC, WT Docket No. 17-79 at 4 (filed August 10, 2018) (Crown Castle Aug. 10, 2018 Ex Parte Letter). 182 New England Public Comms. Council Petition for Preemption Pursuant to Section 253, Memorandum Opinion and Order, 11 FCC Rcd 19713, 19717, para. 9 (1996) (1996 Act intent of “accelerat[ing] deployment of advanced telecommunications services to all Americans by opening all telecommunications markets to competition.”); see also Crown Castle Aug. 10, 2018 Ex Parte Letter at 7.
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period of time is often set in advance.183 In such cases, the resources consumed in serving one geographic area are likely to deplete the resources available for serving other areas.184 The text of Section 253(a) is not limited by its terms only to effective prohibitions within the geographic area targeted by the state or local fee. Where a fee in a geographic area affects service outside that geographic area, the statute is most naturally read to encompass consideration of all affected areas.

63. A contrary, geographically-restrictive interpretation of Section 253(a) would exacerbate the digital divide by giving dense or wealthy states and localities that might be most critical for a provider to serve the ability to leverage their unique position to extract fees for their own benefit at the expense of regional or national deployment by decreasing the deployment resources available for less wealthy or dense jurisdictions.185 As a result, the areas likely to be hardest hit by excessive government fees are not necessarily jurisdictions that charge those fees, but rather areas where the case for new, expanded, or improved service was more marginal to start—and whose service may no longer be economically justifiable in the near-term given the resources demanded by the “must-serve” areas. To cite some examples of harmful aggregate effects, AT&T notes that high annual recurring fees are particularly harmful because of their “continuing and compounding nature.”186 It also states that, “if, as S&P Global Market Intelligence estimates, small-cell deployments reach nearly 800,000 by 2026, a ROW fee of $1000 per year …would result in nearly $800 million annually in forgone investment.” 187 Yet another commenter notes that, “[f]or a deployment that requires a vast number of small cell facilities across a metropolitan area, these fees quickly mount up to hundreds of thousands of dollars, often making deployment economically infeasible,” and “far exceed[ing] any costs the locality incurs by orders of magnitude, while taking capital that would otherwise go to investment in new infrastructure.”188 Endorsing such a result would thwart the purposes underlying Section 253(a). As Crown Castle observes, “[e]ven where the fees do not result in a direct lack of service in a high-demand area like a city or urban core, the high cost of building and operating facilities in these jurisdictions consume [sic] capital and revenue that could otherwise be used to expand wireless infrastructure in higher cost areas. This impact of egregious fees is prohibitory and should be taken into account in any prohibition analysis.”189

64. Some municipal commenters endorse a cost-based approach to “ensure that localities are fully compensated for their costs [and that] fees should be reasonable and non-discriminatory, and should ensure that localities are made whole”190 in recognition that “getting [5G] infrastructure out in a timely manner can be a challenge that involves considerable time and financial resources.”191 Commenters from smaller municipalities recognize that “thousands and thousands of small cells are needed for 5G… [and] 183 See, e.g., AT&T June 8, 2018 Ex Parte Letter at 2; Crown Castle June 7, 2018 Ex Parte Letter at 2; Verizon June 21, 2018 Ex Parte Letter at 2.
184 See, e.g., Municipality of Guayanilla, 450 F.3d at 17 (“Given the interconnected nature of utility services across communities and the strain that the enactment of gross revenue fees in multiple municipalities would have on PRTC's provision of services, the Commonwealth-wide estimates are relevant to determining how the ordinance affects PRTC’s ‘ability . . . to provide any interstate or intrastate telecommunications service’” under Section 253(a)).
185 See, e.g., Letter from Sam Liccardo, Mayor or San Jose, to the Hon. Brendan Carr, Commissioner, FCC, WT Docket No. 17-79, Attachment at 1-2 (filed Aug. 2, 2018) (describing payment by providers of $24 million to a Digital Inclusion Fund in order to deploy small cells in San Jose on city owned light poles). 186 AT&T Comments at 19.
187 AT&T Comments at 19-20.
188 Mobilitie Comments at 3.
189 Crown Castle Aug. 10, 2018 Ex Parte Letter at 2.
190 Sal Pace July 30, 2018 Ex Parte Letter at 1.
191 LaWana Mayfield July 31, 2018 Ex Parte Letter at 1
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old regulations could hinder the timely arrival of 5G throughout the country”192 and urge the Commission to “establish some common-sense standards insofar as it relates to fees associated with the deployment of small cells [due to] a cottage industry of consultants [] who have wrongly counseled communities to adopt excessive and arbitrary fees.”193 Representatives from non-urban areas in particular caution that, “if the investment that goes into deploying 5G on the front end is consumed by big, urban areas, it will take longer for it to flow outwards in the direction of places like Florence, [SC].”194 “[R]educing the high regulatory costs in urban areas would leave more dollars to development in rural areas [because] most of investment capital is spent in the larger urban areas [since] the cost recovery can be made in those areas.

This leaves the rural areas out.”195 We agree with these commenters, and we further agree with courts that have considered “the cumulative effect of future similar municipal [fees ordinances]” across a broad geographic area when evaluating the effect of a particular fee in the context of Section 253(a).196 To the extent that other municipal commenters argue that our interpretation gives wireless providers preferential treatment compared to other users of the ROW, the record does not contain data about other users that would support such a conclusion.197 In any event, Section 253 of the Communications Act expressly bars legal requirements that effectively prohibit telecommunications service without regard to whether it might result in preferential treatment for providers of that service.198

65. Applying this approach here, the record reveals that fees above a reasonable approximation of cost, even when they may not be perceived as excessive or likely to prohibit service in isolation, will have the effect of prohibiting wireless service when the aggregate effects are considered, particularly given the nature and volume of anticipated Small Wireless Facility deployment.199 The record reveals that these effects can take several forms. In some cases, the fees in a particular jurisdiction will lead to reduced or entirely forgone deployment of Small Wireless Facilities in the near term for that 192 Dr. Carolyn Prince July 31, 2018 Ex Parte Letter at 2. 193 Letter from Ashton J. Hayward III, Mayor, Pensacola, FL to the Hon. Brendan Carr, Commissioner, WT Docket No. 17-79 at 1 (filed June 8, 2018).
194 Representative Terry Alexander Aug. 7, 2018 Ex Parte Letter at 1. 195 Senator Duane Ankney July 31, 2018 Ex Parte Letter at 1; see also Letter from Elder Alexis D. Pipkins, Sr. to the Hon. Brendan Carr, Commissioner, FCC at 1 (filed July 26, 2018) (“the race to 5G is global…instead of each city or state for itself, we should be working towards aligned, streamlined frameworks that benefit us all.”); Letter from Jeffrey Bohm, Chairman of the Board of Commissioners, County of St. Clair to Brendan Carr, Commissioner, FCC, WT Docket 17-79 at 1-2 (filed August 22, 2018) (“Smaller communities, such as those located in St. Clair County would benefit from having the Commissions reduce the costly and unnecessary fee’s that some larger communities place on small cells as a condition of deployment. These fees, wholly disproportionate to any cost, put communities like ours at an unfair disadvantage”); Letter from Scott Niesler, Mayor, City of Kings Mountain, to Brendan Carr, Commissioner, FCC, WT Docket 17-79 at 1-2 (filed June 4, 2018) (“the North Carolina General Assembly has enacted legislation to encourage the deployment of small cell technology to limit exorbitant fees which can siphon off capital from further expansion projects. I was encouraged to see the FCC taking similar steps to enact policies that help clear the way for the essential investment”). 196 Guayanilla District Ct. Opinion, 354 F. Supp. 2d at 111-12; but see, e.g., Letter from Nina Beety to Marlene Dortch, Secretary, FCC, WT Docket No. 17-79 at 5 (filed Sept. 17, 2018) (Nina Beety Sept. 17, 2018 Ex Parte Letter) (asserting that providers artificially under-capitalize their deployment budgets to build the case for poverty). 197 Letter from Larry Hanson, Executive Director, Georgia Municipal Association to Marlene Dortch, Secretary, FCC, WT Docket No. 17-79, at 1-2 (filed Sept. 17, 2018) (Georgia Municipal Association Sept. 17, 2018 Ex Parte Letter).
198 47 U.S.C. § 253(a).
199 See, e.g., Wireless Infrastructure Second R&O, FCC 18-30, at para. 64. In addition, although one could argue that, in theory, a sufficiently small departure from actual and reasonable costs might not have the effect of prohibiting service in a particular instance, the record does not reveal an alternative, administrable approach to evaluating fees without a cost-based focus.
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