AT&T is suing the city of Pittsburgh, alleging it asked for excessive small cell fees and failed to process permit applications within the FCC’s 90-day shot clock window.
The complaint filed Tuesday in the U.S. District Court for the Western District of Pennsylvania says the city planned to charge the wireless carrier $850 in annual fees for new small cell installations – a figure AT&T asserts exceeds the FCC limit for a reasonable recurring fee “by nearly 215%, in violation of federal law.”
In 2018 the FCC adopted a small cell order (PDF) aimed at making it easier to deploy infrastructure for 5G. It included limiting the amount local authorities could charge and imposed faster permitting timelines as carriers faced delays and sometimes pushback from state and local governments.
One of the provisions set the reasonable annual fee for each small cell in a city right-of-way (ROW) at $270. It also introduced a 90-day shot clock on municipalities to either approve or deny applications for new small cell wireless infrastructure attached to utility poles and other city-owned structures.
According to the complaint, AT&T last August was working to reach a final ROW agreement with Pittsburgh for new small cell installations.
AT&T did not end up signing because of the alleged unlawful fees – a decision it asserts that led the city to delay acting on two pole permit applications filed in December. Those both involved swapping out city-owned light poles with new ones “of substantially similar design” that collocate antennas and house radio equipment.
The shot-clock ran out on March 8, according to AT&T, without Pittsburgh taking any action.
“AT&T is informed and believes that the City’s failure to act appropriately on the Applications is based on AT&T’s refusal to sign the City’s ROW Agreement which mandates payment to the City of the above-stated inappropriate and illegal fees,” AT&T stated in the filing.
AT&T says Pittsburgh violated federal law and materially inhibited the carrier’s efforts to bolster its wireless network with small cells in the city. By not approving the applications AT&T can’t fix “a significant service capacity gap via the least intrusive means”.
The carrier is seeking a declaratory ruling and judgement for the alleged violations, as well as an order or injunction requiring the city grant AT&T’s permits and prevent it from the claimed overcharging.
AT&T provided the following statement to Fierce: “We have tried for years to work with the City of Pittsburgh to enhance our network for our customers there, including first responders. The city’s lengthy permitting process and excessive fees are inconsistent with federal rules and are barriers for these projects. We remain willing to work with the city, but we had to take this step to move these projects forward.”
The FCC’s 2018 small cell and other 5G infrastructure orders caused controversy. Carriers looking to densify their networks for both 4G and 5G with small cells said delays and friction at the local level were holding back wireless deployments. However, some cities and states saw FCC infrastructure efforts as an overreach, including rules on local authority over aesthetic changes.
Carriers and industry groups have pointed to the large number of small cells needed to handle capacity in dense areas for 4G and 5G, where high fees make rollouts prohibitive. For example, industry group CTIA has said 800,000 small cells would need to be deployed by 2026. On the flip side, some city and state governments were bogged down by applications, along with local concerns about the increased number of wireless facilities, as well as how they would look.
A coalition of U.S. cities and counties took the FCC to court, where the agency largely prevailed. In August 2020, the 9th Circuit Court of Appeals upheld most of the FCC infrastructure orders, including small cells. The court did vacate the provision on aesthetics – sending it back to the FCC for another go.
In 2019, Verizon filed its own lawsuit against the city of Rochester, New York for charging higher than allowed fees for deploying 5G gear.