5G Expansion Concerns During COVID-19

Town Attorney Addresses 5G Expansion Concerns During COVID-19

The Town has received several emails citing concern about the continuation of the permitting and deployment of small cells and other wireless infrastructure during the pandemic. According to 47 U.S. Code § 253(a) of the Telecommunications Act of 1996 (by way of the 2018 FCC Order that has been cited in the emails) and Chapter 284 of the Local Government Code mandate localities must remove all barriers to access to the public rights-of-way to allow the deployment of small cell devices and other wireless infrastructure.

Cities are only permitted to charge a fee, mandated by statute, and must also comply with the permit processing shot clock mandated by Chapter 284. The FCC ruling also provides that if State law is more restrictive, State law must be complied with. The FCC holds that both express and de facto moratoria are prohibited by § 253(a) of the Telecommunications Act. 

The authority that the emails cite would allow the State of Texas to impose a temporary moratorium on the deployment of small cell infrastructure in the face of a natural disaster or other comparable emergency pursuant to § 253(b):

"We recognize that there may be limited situations in the case of a natural disaster or other comparable emergency where an express or de facto moratoria that violates section 253(a) may nonetheless be “necessary” to “protect the public safety and welfare” or to “ensure the continued quality of telecommunications services.”  For example, in the event of a widespread power or telecommunications outage, a state might need to limit access to poles in a specific, affected area until existing power and telecommunications facilities can be restored. We interpret section 253(b) to allow for these state-imposed “emergency” express moratoria only if they are (1) “competitively neutral,” as expressly required by section 253(b), (2) necessary to address the emergency or disaster or related public safety needs, and (3) targeted only to those geographic areas that are affected by the disaster or emergency."

However, this authority under § 253(b) only applies to the State: “As an initial matter, we find that no local or municipal moratoria can fall within the section 253(b) exception absent a specific delegation of regulatory authority by a state to the locality or municipality in question.” Therefore, unless the State of Texas delegates this limited moratoria power directly to the Town of Flower Mound, the authority that the resident cites below does not allow the Town to impose a moratorium on the deployment of small cell infrastructure.

Also, even if the Town had authority under the Telecommunications Act, it would not create an exception to the requirements under Chapter 284 of the Local Government Code to promptly process applications. The State statute also provides:

 (c)  A municipality may not institute a moratorium, in whole or in part, express or de facto, on:

1. Filing, receiving, or processing applications; or
2. Issuing permits or other approvals, if any, for the installation of network nodes or node support poles.  

Unless the Governor, by emergency executive order, suspends Chapter 284 of the Local Government Code, State law will not allow the Town to impose a moratorium on the issuance of small cell permits.

Regrettably, the Town has no authority – either under federal law or State law - to impose the moratorium requested.