FCC Clarifies Burden on State and Local Governments Under Section 253

As the FCC, wireless providers, and state and local governments continue to try to find an appropriate regulatory balance that ensures the safe and rapid deployment of 5G wireless services, many state and local governments have expressed concerns about their ability to manage their public rights-of-way.[1] Although 47 U.S.C. § 253 (“Section 253”) prohibits state and local governments from “prohibit[ing] or hav[ing] the effect of prohibits the ability of any entity to provide any interstate or intrastate telecommunications service,” it does not preempt state and local governments from “manag[ing] the public rights-of-way or [requiring] fair and reasonable compensation from telecommunications providers.”[2]

In a 2018 declaratory ruling (the “2018 Small Cell Declaratory Ruling”), the FCC interpreted Section 253 to mean that state and local governments could not charge fees to wireless providers above certain safe harbors without showing that: “(1) the fees are a reasonable approximation of the state or local government’s costs, (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.”[3] The FCC’s safe harbor fees are: “(a) $500 for non-recurring fees, including a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, or $1,000 for non-recurring fees for a new pole (i.e., not a collocation) intended to support one or more Small Wireless Facilities; and (b) $270 per Small Wireless Facility per year for all recurring fees, including any possible [right-of-way] access fee or fee for attachment to municipally-owned structures in the [rights-of-way].”[4]

In 2019, Clark County, Nevada adopted an ordinance that required a service provider to pay:

  • a recurring Master Wireless Use License Fee of 5% of gross revenues collected each calendar quarter;
  • a Wireless Site License Fee (ranging from $700/year/facility to $3960/year/facility) for each Small Wireless Facility installed in the public rights-of-way, with an automatic annual fee increase of 2% per year; and
  • an Annual Inspection Fee of $500 per Small Wireless Facility installed in a county rights-of-way.[5]

Verizon shortly thereafter filed a petition with the FCC asking the FCC to issue a ruling preempting Clark County’s ordinance under Section 253.[6]

Before the FCC could issue a ruling, Clark County amended its ordinance to remove the fees in question and asked the FCC to dismiss Verizon’s petition.[7] In dismissing the petition, the FCC did not comment on whether Clark County’s original ordinance complied with Section 253 but did provide several key clarifications of the 2018 Small Cell Declaratory Ruling:

  • The burden is on state and local governments to show that fees above the FCC’s safe harbors comply with Section 253.
  • Whether a wireless provider has already deployed facilities or is already providing telecommunications services is irrelevant to the issue of whether a new fee structure prohibits or has the effect of prohibiting the provision of telecommunications services in violation of Section 253.
  • The FCC expressed a strong presumption against gross revenue fees being cost-based, reasonable, and therefore compliant with Section 253.

If your municipality has not yet adopted a small cell ordinance or has questions about an ordinance that has already been adopted, please reach out to a Bradley Law, LLC attorney.


[1] See What Are Small Cell Facilities, and Why Are They in the Public Rights-of-Way (Aug. 21, 2018), https://www.bradleylawmn.com/broadband/what-are-small-cell-facilities-and-why-are-they-in-the-public-rights-of-way/.

[2] 47 U.S.C. § 253.

[3] Petition for Declaratory Ruling that Clark County, Nevada Ordinance No. 4659 is Unlawful Under Section 253 of the Communications Act as Interpreted by the Federal Communications Commission and is Preempted, Order at ¶ 2, WT Docket No. 19-230 (Jan. 14, 2021) (“Clark County Order”). See also Accelerating Wireless Broadband Deployment by Removing Barriers to Infrastructure Investment et al., WT Docket No. 17-79, WC Docket No. 17-84, Declaratory Ruling and Third Report and Order, 33 FCC Rcd 9088, 9103, 9138 paras. 36, 97 (2018) (“2018 Small Cell Declaratory Ruling”), affirmed in part, City of Portland v. United States, 969 F.3d 1020, 1038 (9th Cir. Aug 12, 2020), en banc review denied City of Portland v. FCC, Case No. 18-72689 (9th Cir. Oct. 22, 2020).

[4] 2018 Small Cell Declaratory Ruling at 9129.

[5] Clark County Order at ¶ 3.

[6] Petition for Declaratory Ruling that Clark County, Nevada Ordinance No. 4659 Is Unlawful under Section 253 of the Communications Act as Interpreted by the Federal Communications Commission and Is Preempted (filed Aug. 8, 2019), https://ecfsapi.fcc.gov/file/1080871091743/Verizon%20-%20Petition%20for%20Declaratory%20Ruling%2008082019.pdf. See also 47 U.S.C. § 253(d).

[7] Letter from Gerard Lavery Lederer, Counsel to Clark County, to Ajit Pai, Chairman, FCC, et al., WT Docket No. 19-230 (filed Dec. 16, 2020).

New Medical Exception to Minnesota Open Meeting Law

Under the Minnesota Open Meeting Law (the “OML”), a municipality’s elected officials and commission, committee, board, etc. members are only able to remotely participate in public meetings under certain circumstances. When elected officials and members of a governing body participate in a meeting through interactive television means (e.g., videoconferencing), the OML requires that the person’s physical location be open to the public. The OML was recently amended to allow military servicemembers at a military location to remotely participate in public meetings without making their physical location open to the public.[1]

The OML was recently amended again to allow a remotely participating individual’s physical location to be closed to the public if “the member has been advised by a health care professional against being in a public place for personal or family medical reasons.”[2] This exception to in-person participation can only be used during a state of emergency declared under Minn. Stat. § 12.31 (National Security or Peacetime Emergency; Declaration) and for a period of 60 days thereafter.

It’s important to note that this new exception doesn’t modify the circumstances under which remote participation is allowed.[3] This new exception only affects the statutory requirement that an individual’s physical location be open to the public when the individual is remotely participating in a public meeting through interactive television means. Elected officials and members of a governing body must still be able to see and hear all discussion and testimony occurring at a public meeting and be seen and heard by all other elected officials or members of the governing body, and, members of public. Notice of the body’s regular meeting location and the remote location of any remote elected official or member must still be provided in compliance with Minn. Stat. § 13D.04.

It’s also important to note that this new exception doesn’t modify any other sections of the OML. Specifically, Minn. Stat. § 13D.021, which allows for remote public meetings to be conducted under emergency conditions, is not affected in any way. If a municipality has already followed the process set forth in § 13D.021, there is no need for an individual to have “been advised by a health care professional against being in a public place for personal or family medical reasons” to remotely participate in a public meeting.[4]

If you have any questions about the Minnesota Open Meeting Law, please speak with your attorney or a Bradley Law, LLC attorney to understand how the OML applies to you.

[1] Laws of Minnesota 2019, chapter 33, section 1.
[2] Laws of Minnesota 2020, chapter 74, article 1, section 1.
[3] Minn. Stat. § 13D.02.
[4] Laws of Minnesota 2020, chapter 74, article 1, section 1.


Closing a Public Meeting Under Minnesota’s Open Meeting Law

Under the Minnesota Open Meeting Law (the “OML”), a public body’s meetings must be open to the public unless the OML or another Minnesota law provides an exemption that allows or requires a meeting to be closed. A list of exemptions stated in the OML can be found at the end of this post. Closing a public meeting means that any materials, like a privileged legal report or a document containing confidential information, and discussions related to the closed meeting aren’t open to the public.[1]

Closed meetings are conducted similar to open meetings. Like open meetings, adequate notice must be provided for closed meetings and, except for meetings closed by attorney-client privilege, closed meetings must be recorded, and the recording must be preserved for at least three years.[2] In addition, the OML sets forth specific procedural requirements for discussion of certain issues or topics in a closed meeting.

Failure to properly conduct a closed meeting may result in a penalty of up to $300, and multiple violations may result in a person being forced to resign from a public body.[3] In addition, a court may award reasonable costs, disbursements, and reasonable attorney fees to a prevailing party (i.e., losing party pay’s the winner’s costs).

Exemptions Allowing or Requiring the Closing of a Public Meeting:

  • Discussion of “data that would identify alleged victims or reporters of criminal sexual conduct, domestic abuse, or maltreatment of minors of vulnerable adults.” Minn. Stat. § 13D.05, subd. 2(a)(1).
  • Discussion of “active investigation data as defined in section 13.82, subdivision 7, or internal affairs data relating to allegations of law enforcement personnel misconduct collected or created by a state agency, statewide system, or political subdivision.” Minn. Stat. § 13D.05, subd. 2(a)(2).
  • Discussion of “educational data, health data, medical data, welfare data, or mental health data that are not public data under section 13.32, subdivision 1, 13.384, or 13.46, subdivision 2 or 7.” Minn. Stat. § 13D.05, subd. 2(a)(3).
  • Discussion of “an individual’s medical records governed by sections 144.291 to 144.298.” Minn. Stat. § 13D.05, subd. 2(a)(4).
  • “Preliminary consideration of allegations or charges against an individual subject to its authority” unless the individual who is the subject of the meeting requests the meeting be open in which case the meeting must be open. “If the members conclude that discipline of any nature may be warranted as a result of those specific charges or allegations, further meetings or hearings relating to those specific charges or allegations held after that conclusion is reached must be open.” Minn. Stat. § 13D.05, subd. 2(b).
  • Consideration of “strategy for labor negotiations, including negotiation strategies or developments or discussion and review of labor negotiation proposals, conducted pursuant to sections 179A.01 to 179A.25.” Minn. Stat. § 13D.03, subd. 1(b).
  • Disclosure of not public data “if the disclosure relates to a matter within the scope of the public body’s authority and is reasonably necessary to conduct the business or agenda item before the public body.” Minn. Stat. § 13D.05, subd. 1(b).
  • Discussion of “the performance of an individual who is subject to its authority” unless the individual who is the subject of the meeting requests the meeting be open in which case the meeting must be open. Minn. Stat. § 13D.05, subd. 3(a).
  • If expressly permitted by statute. Minn. Stat. § 13D.05, subd. 3(b).
  • If permitted by attorney-client privilege. Minn. Stat. § 13D.05, subd. 3(b).
  • “To determine the asking price for real or personal property to be sold by the government entity.” Minn. Stat. § 13D.05, subd. 3(c)(1).
  • “To develop or consider offers or counteroffers for the purchase or sale of real or personal property.” Minn. Stat. § 13D.05, subd. 3(c)(3).
  • “To receive security briefings and reports, to discuss issues related to security systems, to discuss emergency response procedures, and to discuss security deficiencies in or recommendations regarding public services, infrastructure, and facilities, if disclosure of the information discussed would pose a danger to public safety or compromise security procedures or responses.” Minn. Stat. § 13D.05, subd. 3(d).

[1] See Minn. Stat. § 13D.01, subd. 6(b). See also Minn. Stat. Ch. 13 (Government Data Practices).
[2] Minn. Stat. §§ 13D.03, subd. 5 & .05, subd. 1(d).
[3] See Minn. Stat. § 13D.06 (2008).

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