FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY OF PORTLAND,

Petitioner,

v.

UNITED STATES OF AMERICA;

FEDERAL COMMUNICATIONS

COMMISSION,

Respondents,

CITY AND COUNTY OF SAN

FRANCISCO; CITY OF ARCADIA; CITY

OF BELLEVUE; CITY OF

BROOKHAVEN; CITY OF BURIEN;

CITY OF BURLINGAME; CITY OF

CHICAGO; CITY OF CULVER CITY;

CITY OF DUBUQUE; CITY OF GIG

HARBOR; CITY OF KIRKLAND; CITY

OF LAS VEGAS; CITY OF LINCOLN;

CITY OF MONTEREY; CITY OF

PHILADELPHIA; CITY OF PIEDMONT;

CITY OF PLANO; CITY OF SAN

BRUNO; CITY OF SAN JACINTO; CITY

OF SAN JOSE; CITY OF SANTA

MONICA; CITY OF SHAFTER; COUNTY

OF LOS ANGELES; HOWARD

COUNTY; MICHIGAN MUNICIPAL

LEAGUE; CTIA - THE WIRELESS

No. 18-72689

FCC No.

18-111
2 CITY OF PORTLAND V. UNITED STATES

ASSOCIATION; TOWN OF FAIRFAX;

TOWN OF HILLSBOROUGH,

Intervenors.

AMERICAN ELECTRIC POWER

SERVICE CORPORATION;

CENTERPOINT ENERGY HOUSTON

ELECTRIC, LLC; DUKE ENERGY

CORPORATION; ENTERGY

CORPORATION; ONCOR ELECTRIC

DELIVERY COMPANY, LLC;

SOUTHERN COMPANY; TAMPA

ELECTRIC COMPANY; VIRGINIA

ELECTRIC AND POWER COMPANY;

XCEL ENERGY SERVICES INC.,

Petitioners,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Respondents,

VERIZON; US TELECOM—THE

BROADBAND ASSOCIATION,

Respondents-Intervenors.

No. 19-70490

FCC No.

18-111
CITY OF PORTLAND V. UNITED STATES 3

SPRINT CORPORATION,

Petitioner,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Respondents,

CITY OF BOWIE, Maryland; CITY OF

EUGENE, Oregon; CITY OF

HUNTSVILLE, Alabama; CITY OF

WESTMINSTER, Maryland; COUNTY

OF MARIN, California; CITY OF

ARCADIA, California; CULVER CITY,

California; CITY OF BELLEVUE,

California; CITY OF BURIEN,

Washington; CITY OF BURLINGAME,

California; CITY OF GIG HARBOR,

Washington; CITY OF ISSAQUAH,

Washington; CITY OF KIRKLAND,

Washington; CITY OF LAS VEGAS,

Nevada; CITY OF LOS ANGELES,

California; CITY OF MONTEREY,

California; CITY OF ONTARIO,

California; CITY OF PIEDMONT,

California; CITY OF PORTLAND,

Oregon; CITY OF SAN JACINTO,

California; CITY OF SAN JOSE,

California; CITY OF SHAFTER,

California; CITY OF YUMA, Arizona;

No. 19-70123

FCC No.

18-133
4 CITY OF PORTLAND V. UNITED STATES

COUNTY OF LOS ANGELES,

California; TOWN OF FAIRFAX,

California; CITY OF NEW YORK, New

York,

Intervenors.

VERIZON COMMUNICATIONS, INC.,

Petitioner,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Respondents,

CITY OF ARCADIA, California; CITY

OF BELLEVUE, California; CITY OF

BURIEN, Washington; CITY OF

BURLINGAME, California; CITY OF

GIG HARBOR, Washington; CITY OF

ISSAQUAH, Washington; CITY OF

KIRKLAND, Washington; CITY OF

LAS VEGAS, Nevada; CITY OF LOS

ANGELES, California; CITY OF

MONTEREY, California; CITY OF

ONTARIO, California; CITY OF

PIEDMONT, California; CITY OF

PORTLAND, Oregon; CITY OF SAN

JACINTO, California; CITY OF SAN

JOSE, California; CITY OF SHAFTER,

No. 19-70124

FCC No.

18-133
CITY OF PORTLAND V. UNITED STATES 5

California; CITY OF YUMA, Arizona;

COUNTY OF LOS ANGELES,

California; CULVER CITY, California;

CITY OF NEW YORK, New York;

TOWN OF FAIRFAX, California,

Intervenors.

PUERTO RICO TELEPHONE

COMPANY, INC.,

Petitioner,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Respondents,

CITY OF ARCADIA, California; CITY

OF BELLEVUE, California; CITY OF

BURIEN, Washington; CITY OF

BURLINGAME, California; CITY OF

GIG HARBOR, Washington; CITY OF

ISSAQUAH, Washington; CITY OF

KIRKLAND, Washington; CITY OF

LAS VEGAS, Nevada; CITY OF LOS

ANGELES, California; CITY OF

MONTEREY, California; CITY OF

ONTARIO, California; CITY OF

PIEDMONT, California; CITY OF

PORTLAND, Oregon; CITY OF SAN

No. 19-70125

FCC No.

18-133
6 CITY OF PORTLAND V. UNITED STATES

JACINTO, California; CITY OF SAN

JOSE, California; CITY OF SHAFTER,

California; CITY OF YUMA, Arizona;

COUNTY OF LOS ANGELES,

California; CULVER CITY, California;

TOWN OF FAIRFAX, California; CITY

OF NEW YORK, New York,

Intervenors.

CITY OF SEATTLE, Washington; CITY

OF TACOMA, Washington; KING

COUNTY, Washington; LEAGUE OF

OREGON CITIES; LEAGUE OF

CALIFORNIA CITIES; LEAGUE OF

ARIZONA CITIES AND TOWNS,

Petitioners,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Respondents,

CITY OF BAKERSFIELD, California;

CITY OF COCONUT CREEK, Florida;

CITY OF LACEY, Washington; CITY

OF OLYMPIA, Washington; CITY OF

RANCHO PALOS VERDES, California;

CITY OF TUMWATER, Washington;

COLORADO COMMUNICATIONS AND

No. 19-70136

FCC No.

18-133
CITY OF PORTLAND V. UNITED STATES 7

UTILITY ALLIANCE; RAINIER

COMMUNICATIONS COMMISSION;

COUNTY OF THURSTON, Washington;

CITY OF ARCADIA, California; CITY

OF BELLEVUE, Washington; CITY OF

BURIEN, Washington; CITY OF

BURLINGAME, California; CITY OF

GIG HARBOR, Washington; CITY OF

ISSAQUAH, Washington; CITY OF

KIRKLAND, Washington; CITY OF

LAS VEGAS, Nevada; CITY OF LOS

ANGELES, California; CITY OF

MONTEREY, California; CITY OF

ONTARIO, California; CITY OF

PIEDMONT, California; CITY OF

PORTLAND, Oregon; CITY OF SAN

JACINTO, California; CITY OF SAN

JOSE, California; CITY OF SHAFTER,

California; CITY OF YUMA, Arizona;

COUNTY OF LOS ANGELES,

California; CULVER CITY, California;

TOWN OF FAIRFAX, California; CITY

OF NEW YORK, New York,

Intervenors.

CITY OF SAN JOSE, California; CITY

OF ARCADIA, California; CITY OF

BELLEVUE, Washington; CITY OF

BURIEN, Washington; CITY OF

BURLINGAME, California; CULVER

CITY, California; TOWN OF FAIRFAX,

California; CITY OF GIG HARBOR,

No. 19-70144

FCC No.

18-133
8 CITY OF PORTLAND V. UNITED STATES

Washington; CITY OF ISSAQUAH,

Washington; CITY OF KIRKLAND,

Washington; CITY OF LAS VEGAS,

Nevada; CITY OF LOS ANGELES,

California; COUNTY OF LOS

ANGELES, California; CITY OF

MONTEREY, California; CITY OF

ONTARIO, California; CITY OF

PIEDMONT, California; CITY OF

PORTLAND, Oregon; CITY OF SAN

JACINTO, California; CITY OF

SHAFTER, California; CITY OF YUMA,

Arizona,

Petitioners,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Respondents,

CTIA - THE WIRELESS ASSOCIATION;

COMPETITIVE CARRIERS

ASSOCIATION; SPRINT

CORPORATION; VERIZON

COMMUNICATIONS, INC.; CITY OF

NEW YORK, NEW YORK; WIRELESS

INFRASTRUCTURE ASSOCIATION,

Intervenors.
CITY OF PORTLAND V. UNITED STATES 9

CITY AND COUNTY OF SAN

FRANCISCO,

Petitioner,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Respondents.

No. 19-70145

FCC No.

18-133

CITY OF HUNTINGTON BEACH,

Petitioner,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Respondents,

CITY OF ARCADIA, California; CITY

OF BELLEVUE, Washington; CITY OF

BURIEN, Washington; CITY OF

BURLINGAME, California; CITY OF

GIG HARBOR, Washington; CITY OF

ISSAQUAH, Washington; CITY OF

KIRKLAND, Washington; CITY OF

LAS VEGAS, Nevada; CITY OF LOS

ANGELES, California; CITY OF

MONTEREY, California; CITY OF

No. 19-70146

FCC No.

18-133
10 CITY OF PORTLAND V. UNITED STATES

ONTARIO, California; CITY OF

PIEDMONT, California; CITY OF

PORTLAND, Oregon; CITY OF SAN

JACINTO, California; CITY OF SAN

JOSE, California; CITY OF SHAFTER,

California; CITY OF YUMA, Arizona;

COUNTY OF LOS ANGELES,

California; CULVER CITY, California;

TOWN OF FAIRFAX, California; CITY

OF NEW YORK, New York,

Intervenors.

MONTGOMERY COUNTY, Maryland,

Petitioner,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Respondents.

No. 19-70147

FCC No.

18-133

AT&T SERVICES, INC.,

Petitioner,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

No. 19-70326

FCC Nos.

18-133

83-fr-51867
CITY OF PORTLAND V. UNITED STATES 11

Respondents,

CITY OF BALTIMORE, Maryland;

CITY AND COUNTY OF SAN

FRANCISCO, California; MICHIGAN

MUNICIPAL LEAGUE; CITY OF

ALBUQUERQUE, New Mexico;

NATIONAL LEAGUE OF CITIES; CITY

OF BAKERSFIELD, California; TOWN

OF OCEAN CITY, Maryland; CITY OF

BROOKHAVEN, Georgia; CITY OF 

COCONUT CREEK, Florida; CITY OF

DUBUQUE, Iowa; CITY OF

EMERYVILLE, California; CITY OF

FRESNO, California; CITY OF LA

VISTA, Nebraska; CITY OF LACEY,

Washington; CITY OF MEDINA,

Washington; CITY OF OLYMPIA,

Washington; CITY OF PAPILLION,

Nebraska; CITY OF PLANO, Texas;

CITY OF RANCHO PALOS VERDES,

California; CITY OF ROCKVILLE,

Maryland; CITY OF SAN BRUNO,

California; CITY OF SANTA MONICA,

California; CITY OF SUGARLAND,

Texas; CITY OF TUMWATER,

Washington; CITY OF WESTMINSTER,

Maryland; COLORADO

COMMUNICATIONS AND UTILITY

ALLIANCE; CONTRA COSTA COUNTY,

California; COUNTY OF MARIN,

California; INTERNATIONAL
12 CITY OF PORTLAND V. UNITED STATES

CITY/COUNTY MANAGEMENT

ASSOCIATION; INTERNATIONAL

MUNICIPAL LAWYERS ASSOCIATION;

LEAGUE OF NEBRASKA

MUNICIPALITIES; NATIONAL

ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS

AND ADVISORS; RAINIER

COMMUNICATIONS COMMISSION;

THURSTON COUNTY, Washington;

TOWN OF CORTE MADERA,

California; TOWN OF

HILLSBOROUGH, California; TOWN

OF YARROW POINT, Washington;

CITY OF ARCADIA, California; CITY

OF BELLEVUE, Washington; CITY OF

BURIEN, Washington; CITY OF

BURLINGAME, California; CITY OF

CULVER CITY , California; CITY OF

GIG HARBOR, Washington; CITY OF

ISSAQUAH, Washington; CITY OF

KIRKLAND, Washington; CITY OF

LAS VEGAS, Nevada; CITY OF LOS

ANGELES, California; CITY OF

MONTEREY, California; CITY OF

ONTARIO, California; CITY OF

PIEDMONT, California; CITY OF

PORTLAND, Oregon; CITY OF SAN

JACINTO, California; CITY OF SAN

JOSE, California; CITY OF SHAFTER,

California; CITY OF YUMA, Arizona;

COUNTY OF LOS ANGELES,

California; TOWN OF FAIRFAX,
CITY OF PORTLAND V. UNITED STATES 13

California,

Intervenors.

AMERICAN PUBLIC POWER

ASSOCIATION,

Petitioner,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Respondents,

CITY OF ALBUQUERQUE, New

Mexico; NATIONAL LEAGUE OF

CITIES; CITY OF BROOKHAVEN,

Georgia; CITY OF BALTIMORE,

Maryland; CITY OF DUBUQUE, Iowa;

TOWN OF OCEAN CITY, Maryland;

CITY OF EMERYVILLE, California;

MICHIGAN MUNICIPAL LEAGUE;

TOWN OF HILLSBOROUGH,

California; CITY OF LA VISTA,

Nebraska; CITY OF MEDINA,

Washington; CITY OF PAPILLION,

Nebraska; CITY OF PLANO, Texas;

CITY OF ROCKVILLE, Maryland; CITY

OF SAN BRUNO, California; CITY OF

SANTA MONICA, California; CITY OF

SUGARLAND, Texas; LEAGUE OF

No. 19-70339

FCC Nos.

18-133

83-fr-51867
14 CITY OF PORTLAND V. UNITED STATES

NEBRASKA MUNICIPALITIES;

NATIONAL ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS

AND ADVISORS; CITY OF

BAKERSFIELD, California; CITY OF

FRESNO, California; CITY OF

RANCHO PALOS VERDES, California;

CITY OF COCONUT CREEK, Florida;

CITY OF LACEY, Washington; CITY

OF OLYMPIA, Washington; CITY OF

TUMWATER, Washington; TOWN OF

YARROW POINT, Washington;

THURSTON COUNTY, Washington;

COLORADO COMMUNICATIONS AND

UTILITY ALLIANCE; RAINIER

COMMUNICATIONS COMMISSION;

CITY AND COUNTY OF SAN

FRANCISCO, California; COUNTY OF

MARIN, California; CONTRA COSTA

COUNTY, California; TOWN OF

CORTE MADERA, California; CITY OF

WESTMINSTER, Maryland,

Intervenors.

CITY OF AUSTIN, Texas; CITY OF

ANN ARBOR, Michigan; COUNTY OF

ANNE ARUNDEL, Maryland; CITY OF

ATLANTA, Georgia; CITY OF

BOSTON, Massachusetts; CITY OF

CHICAGO, Illinois; CLARK COUNTY,

Nevada; CITY OF COLLEGE PARK,

Maryland; CITY OF DALLAS, Texas;

No. 19-70341

FCC Nos.

18-133

83-FR-51867
CITY OF PORTLAND V. UNITED STATES 15

DISTRICT OF COLUMBIA; CITY OF

GAITHERSBURG, Maryland; HOWARD

COUNTY, Maryland; CITY OF

LINCOLN, Nebraska; MONTGOMERY

COUNTY, Maryland; CITY OF

MYRTLE BEACH, South Carolina;

CITY OF OMAHA, Nebraska; CITY OF

PHILADELPHIA, Pennsylvania; CITY

OF RYE, New York; CITY OF

SCARSDALE, New York; CITY OF

SEAT PLEASANT, Maryland; CITY OF

TAKOMA PARK, Maryland; TEXAS

COALITION OF CITIES FOR UTILITY

ISSUES; MERIDIAN TOWNSHIP,

Michigan; BLOOMFIELD TOWNSHIP,

Michigan; MICHIGAN TOWNSHIPS

ASSOCIATION; MICHIGAN COALITION

TO PROTECT PUBLIC RIGHTS-OFWAY,

Petitioners,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Respondents,

CITY OF ALBUQUERQUE, New

Mexico; NATIONAL LEAGUE OF

CITIES; CITY OF BROOKHAVEN,

Georgia; CITY OF BALTIMORE,
16 CITY OF PORTLAND V. UNITED STATES

Maryland; CITY OF DUBUQUE, Iowa;

TOWN OF OCEAN CITY, Maryland;

CITY OF EMERYVILLE, California;

MICHIGAN MUNICIPAL LEAGUE;

TOWN OF HILLSBOROUGH,

California; CITY OF LA VISTA,

Nebraska; CITY OF MEDINA,

Washington; CITY OF PAPILLION,

Nebraska; CITY OF PLANO, Texas;

CITY OF ROCKVILLE, Maryland; CITY

OF SAN BRUNO, California; CITY OF

SANTA MONICA, California; CITY OF

SUGARLAND, Texas; LEAGUE OF

NEBRASKA MUNICIPALITIES;

NATIONAL ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS

AND ADVISORS; CITY OF

BAKERSFIELD, California; CITY OF

FRESNO, California; CITY OF

RANCHO PALOS VERDES, California;

CITY OF COCONUT CREEK, Florida;

CITY OF LACEY, Washington; CITY

OF OLYMPIA, Washington; CITY OF

TUMWATER, Washington; TOWN OF

YARROW POINT, Washington;

THURSTON COUNTY, Washington;

COLORADO COMMUNICATIONS AND

UTILITY ALLIANCE; RAINIER

COMMUNICATIONS COMMISSION;

CITY AND COUNTY OF SAN

FRANCISCO, California; COUNTY OF

MARIN, California; CONTRA COSTA

COUNTY, California; TOWN OF
CITY OF PORTLAND V. UNITED STATES 17

CORTE MADERA, California; CITY OF

WESTMINSTER, Maryland,

Intervenors.

CITY OF EUGENE, Oregon; CITY OF

HUNTSVILLE, Alabama; CITY OF

BOWIE, Maryland,

Petitioners,

v.

FEDERAL COMMUNICATIONS

COMMISSION; UNITED STATES OF

AMERICA,

Respondents,

CITY OF ALBUQUERQUE, New

Mexico; NATIONAL LEAGUE OF

CITIES; CITY OF BROOKHAVEN,

Georgia; CITY OF BALTIMORE,

Maryland; CITY OF DUBUQUE, Iowa;

TOWN OF OCEAN CITY, Maryland;

CITY OF EMERYVILLE, California;

MICHIGAN MUNICIPAL LEAGUE;

TOWN OF HILLSBOROUGH,

California; CITY OF LA VISTA,

Nebraska; CITY OF MEDINA,

Washington; CITY OF PAPILLION,

Nebraska; CITY OF PLANO, Texas;

CITY OF ROCKVILLE, Maryland; CITY

No. 19-70344

FCC Nos.

18-133

83-FR-51867

OPINION
18 CITY OF PORTLAND V. UNITED STATES

OF SAN BRUNO, California; CITY OF

SANTA MONICA, California; CITY OF

SUGARLAND, Texas; LEAGUE OF

NEBRASKA MUNICIPALITIES;

NATIONAL ASSOCIATION OF

TELECOMMUNICATIONS OFFICERS

AND ADVISORS; CITY OF

BAKERSFIELD, California; CITY OF

FRESNO, California; CITY OF

RANCHO PALOS VERDES, California;

CITY OF COCONUT CREEK, FLORIDA;

CITY OF LACEY, Washington; CITY

OF OLYMPIA, Washington; CITY OF

TUMWATER, Washington; TOWN OF

YARROW POINT, Washington;

THURSTON COUNTY, Washington;

COLORADO COMMUNICATIONS AND

UTILITY ALLIANCE; RAINIER

COMMUNICATIONS COMMISSION;

CITY AND COUNTY OF SAN

FRANCISCO, California; COUNTY OF

MARIN, California; CONTRA COSTA

COUNTY, California; TOWN OF

CORTE MADERA, California; CITY OF

WESTMINSTER, Maryland,

Intervenors.
CITY OF PORTLAND V. UNITED STATES 19

On Petitions for Review of Orders of the

Federal Communications Commission

Argued and Submitted February 10, 2020

Pasadena, California

Filed August 12, 2020

Before: Mary M. Schroeder, Jay S. Bybee, and

Daniel A. Bress, Circuit Judges.

Opinion by Judge Schroeder;

Partial Dissent by Judge Bress

SUMMARY*

Federal Communications Commission

The panel granted in part, and denied in part, petitions for

review of three orders of the Federal Communications

Commission (“FCC”) concerning the newest generation of

wireless broadband technology known as “5G” that requires

the installation of thousands of “small cell” wireless facilities.

Petitioners seeking review of the FCC orders are

numerous local governments, public and private power

utilities, and wireless service providers. The orders were

promulgated under the authority of the Telecommunications

Act of 1996 (the “Act”). The orders, issued in 2018, are

*

 This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
20 CITY OF PORTLAND V. UNITED STATES

known as the Small Cell Order, the Moratoria Order, and the

One Touch Make-Ready Order. The first two orders spelled

out the limits on local governments’ authority to regulate

telecommunications providers. The third order was intended

to prevent owners and operators of utility poles from

discriminatorily denying or delaying 5G and broadband

service providers access to the poles. 

The panel held that, given the deference owed to the

agency in interpreting and enforcing the Act, the Small Cell

and Moratoria Orders were, with the exception of one

provision, in accord with the congressional directive in the

Act, and not otherwise arbitrary, capricious, or contrary to

law. The exception was the Small Cell Order provision

dealing with the authority of local governments in the area of

aesthetic regulations. The panel held that to the extent that

provision required small cell facilities to be treated in the

same manner as other types of communications services, the

regulation was contrary to the congressional directive that

allowed different regulatory treatment among types of

providers, so long as such treatment did not “unreasonably

discriminate among providers of functionally equivalent

services.” 47 U.S.C. § 332(c)(7)(B)(i)(I). The panel also

held that the FCC’s requirement that all aesthetic criteria

must be “objective” lacked a reasoned explanation. The

panel rejected constitutional challenges under the Fifth and

Tenth Amendments to both orders.

The panel upheld the One Touch Make-Ready Order. 

The panel concluded that the FCC reasonably interpreted

Section 224 of the Act as a matter of law, and the Order was

not otherwise arbitrary or capricious. The panel rejected

petitioners’ challenges to four secondary aspects of the Order:

rules for overlashing, preexisting violations, self-help, and
CITY OF PORTLAND V. UNITED STATES 21

rate reform. The panel held that the rules were an

appropriate exercise of the FCC’s regulatory authority under

the Act.

The panel granted the petitions for review as to the FCC’s

requirement in the Small Cell Order that aesthetic regulations

be “no more burdensome” than requirements applied to other

infrastructure deployment, and the FCC’s requirement that all

local aesthetic regulations be “objective,” vacated those

portions of the rule, and remanded them to the FCC. The

petition of Montgomery County was dismissed as moot. As

to all other challenges, the panel denied the petitions for

review.

Judge Bress joined the majority opinion except as to Part

III.A.1, which upheld the FCC’s decision to preempt any fees

charged to wireless or telecommunications providers that

exceed a locality’s costs for hosting communications

equipment. In Judge Bress’s view, the FCC did not

adequately explain how all above-cost fees amounted to an

“effective prohibition” on telecommunications or wireless

service under 47 U.S.C. §§ 253(a) and 332(c)(7)(B)(i)(I). 

Judge Bress would vacate this prohibition and remand.
22 CITY OF PORTLAND V. UNITED STATES

COUNSEL

Petitioners/Intervenors

Joseph Van Eaton (argued) and John Gasparini, Best Best &

Krieger LLP, Washington, D.C.; Gail A. Karish, Best Best &

Krieger LLP, Los Angeles, California; Michael J. Watza,

Kitch Drutchas Wagner Valitutti & Sherbrook, Detroit,

Michigan; for Petitioners/Intervenors Cities of San Jose,

Arcadia, Bellevue, Burien, Burlingame, Culver City, Gig

Harbor, Issaquah, Kirkland, Las Vegas, Los Angeles,

Monterey, Ontario, Piedmont, Portland, San Jacinto, Shafter,

Yuma, Albuquerque, Brookhaven, Baltimore, Dubuque,

Emeryville, La Vista, Medina, Papillion, Plano, Rockville,

San Bruno, Santa Monica, Sugarland, Austin, Ann Arbor,

Atlanta, Boston, Chicago, College Park, Dallas, Gaithersburg,

Lincoln, Myrtle Beach, Omaha, Philadelphia, Rye, Scarsdale,

Seat Pleasant, and Takoma Park; Los Angeles, Anne Arundel,

Clark, Howard, and Montgomery Counties; Towns of Fairfax,

Ocean City, and Hillsborough; Townships of Meridian and

Bloomfield, Michigan Townships Association; District of

Columbia; Michigan Coalition to Protect Public Rights-ofWay, National League of Cities, Michigan Municipal League,

League of Nebraska Municipalities, and Texas Coalition of

Cities for Utility Issues.

Sean A. Stokes (argued) and James Baller, Baller Stokes &

Lide PC, Washington, D.C., for Petitioner American Public

Power Association.

Eric P. Gotting (argued), Keller and Heckman LLP,

Washington, D.C., for Petitioners/Intervenors Montgomery

County, Maryland; and International Municipal Lawyers
CITY OF PORTLAND V. UNITED STATES 23

Association; International City/County Management

Association.

Eric B. Langley (argued) and Robin F. Bromberg, Langley &

Bromberg LLC, Birmingham, Alabama, for Petitioners

American Electric Power Service Corporation, Duke Energy

Corporation, Entergy Corporation, Oncor Electric Delivery

Company, Southern Company, and Tampa Electric Company.

Joshua S. Turner (argued), Sara M. Baxenburg, and Boyd

Garriott, Wiley Rein LLP, Washington, D.C.; Thomas Power,

Senior Vice President and General Counsel, CTIA - The

Wireless Association, Washington, D.C.; for Intervenor CTIA

- The Wireless Association.

Claire J. Evans (argued) and Christopher S. Huther, Wiley

Rein LLP, Washington, D.C., for Intervenor US

Telecom—The Broadband Association.

Kenneth S. Fellman and Gabrielle A. Daley, Kissinger &

Fellman PC, Denver, Colorado; Robert C. May III and

Michael D. Johnston, Telecom Law Firm PC, San Diego,

California; for Petitioners/Intervenors Cities of Bakersfield,

Coconut Creek, Fresno, Lacey, Olympia, Rancho Palos

Verdes, Seattle, Tacoma, Tumwater; Town of Yarrow Point;

King and Thurston Counties; League of Oregon Cities,

League of California Cities, League of Arizona Cities and

Towns, Colorado Communications and Utility Alliance, and

Rainier Communications Commission.

Brett H. Freedson, Charles A. Zdebski, and Robert J. Gastner,

Eckert Seamans Cherin & Mellott LLC, Washington, D.C.,

for Petitioners CenterPoint Energy Houston Electric and

Virginia Electric and Power Company.
24 CITY OF PORTLAND V. UNITED STATES

David D. Rines and Kevin M. Cookler, Lerman Senter PLLC,

Washington, D.C., for Petitioner Xcel Energy Services.

Christopher J. Wright and E. Austin Bonner, Harris Wiltshire

& Grannis LLP, Washington, D.C., for Petitioner/Intervenor

Sprint Corporation.

Sean A. Lev and Frederick Gaston Hall, Kellogg Hansen

Todd Figel & Frederick P.L.L.C., Washington, D.C., for

Petitioner AT&T Services.

Henry Weissmann, Munger Tolles & Olson LLP, Los

Angeles, California; Jonathan Meltzer, Munger Tolles &

Olson LLP, Washington, D.C.; for Petitioner/Intervenor

Verizon Communications.

Megan L. Brown and Jeremy J. Broggi, Wiley Rein LLP,

Washington, D.C., for Petitioner Puerto Rico Telephone

Company.

Tillman L. Lay and Jeffrey M. Bayne, Spiegel & McDiarmid

LLP, Washington, D.C., Dennis J. Herrera, City Attorney;

Theresa L. Mueller, Chief Energy and Telecommunications

Deputy; William K. Sanders, Deputy City Attorney; Office of

the City Attorney, San Francisco, California; for

Petitioners/Intervenors Cities of Eugene, Huntsville, Bowie,

Westminster; Town of Corte Madera; and Counties of San

Francisco, Marin, and Contra Costa.

Michael E. Gates, City Attorney; Michael J. Vigliotta, Chief

Assistant City Attorney; Office of the City Attorney,

Huntington Beach, California; for Petitioner City of

Huntington Beach.
CITY OF PORTLAND V. UNITED STATES 25

Nancy L. Werner, General Counsel, Alexandria, Virginia, as

and for Intervenor National Association of

Telecommunications Officers and Advisors.

Zachary W. Carter, Corporation Counsel; Richard Dearing,

Claude S. Platton, and Elina Druker, Attorneys; Office of

Corporation Counsel, New York, New York; for Intervenor

City of New York.

Amanda Kellar and Charles W. Thompson Jr., Rockville,

Maryland; for Intervenors International Municipal Lawyers

Association and International City/County Management

Association.

Jennifer P. Bagg, Harris Wiltshire & Grannis LLP,

Washington, D.C., for Intervenor Competitive Carriers

Association.

Thomas Scott Thompson and Patrick Curran, Davis Wright

Tremaine LLP, Washington, D.C.; for Intervenor Wireless

Infrastructure Association.

Respondents

Sarah E. Citrin (argued), Scott M. Noveck (argued), and

James M. Carr (argued), Counsel; Richard K. Welch, Deputy

Associate General Counsel; Jacob M. Lewis, Associate

General Counsel; Thomas M. Johnson Jr., General Counsel;

Federal Communications Commission, Washington, D.C.;

Robert B. Nicholson, Adam D. Chandler and Patrick M.

Kuhlmann, Attorneys; Michael F. Murray, Deputy Assistant

Attorney General; Andrew C. Finch, Principal Deputy

Assistant Attorney General; Makan Delrahim, Assistant

Attorney General; United States Department of Justice,
26 CITY OF PORTLAND V. UNITED STATES

Washington, D.C.; for Respondents United States of America

and Federal Communications Commission.

Amici Curiae

James E. Moore and Tim R. Shattuck, Woods Fuller Shultz

& Smith P.C., Sioux Falls, South Dakota, for Amicus Curiae

Missouri Basin Municipal Power Agency.

Ellen F. Rosenblum, Attorney General; Benjamin Gutman,

Solicitor General; Rolf C. Moan, Senior Assistant Attorney

General; Office of the Attorney General, Salem, Oregon; for

Amicus Curiae State of Oregon.

Thomas E. Montgomery, County Counsel; Jeffrey P.

Michalowski, Senior Deputy; Office of County Counsel, San

Diego, California; for Amicus Curiae County of San Diego.

Spencer Q. Parsons, Beery Elsner & Hammond LLP,

Portland, Oregon, for Amici Curiae Nebraska Municipal

Power Pool and Lincoln Electric System.

Gerit F. Hull, Jennings Strouss & Salmon PLC, Washington,

D.C.; Lisa G. McAlister, SVP & General Counsel for

Regulatory Affairs; American Municipal Power Inc.,

Columbus, Ohio; for Amicus Curiae American Municipal

Power Inc.

Emily Fisher, Aryeh Fishman, and Amanda Aspatore, Edison

Electric Institute, Washington, D.C.; Brett Kilbourne, Vice

President Policy and General Counsel, Utilities Technology

Council, Arlington, Virginia; Jeffrey L. Sheldon and Stephen

J. Rosen, Levine Blaszak Block & Boothby LLP,

Washington, D.C.; Brian O’Hara, Senior Director Regulatory
CITY OF PORTLAND V. UNITED STATES 27

Issues, National Rural Electric Cooperative Association,

Arlington, Virginia; for Amici Curiae Edison Electric

Institute, Utilities Technology Council, and National Rural

Electric Cooperative Association.

Matthew A. Love, Van Ness Feldman LLP, Seattle,

Washington, for Amicus Curiae Northwest Public Power

Association.

Sblend A. Sblendorio, Mallory L. Homewood, and Cara Mae

Acibo, Hoge Fenton Jones & Appel Inc., Pleasanton,

California, for Amicus Curiae Berkshire-Litchfield

Environmental Council.

Terry M. Jarrett, Healy Law Offices LLC, Jefferson City,

Missouri, for Amici Curiae Iowa Association of Municipal

Utilities Association, Missouri Association of Municipal

Utilities, and Arkansas Municipal Power Association.

W. Scott Snyder, Ogden Murphy Wallace, Seattle,

Washington, for Amicus Curiae Association of Washington

Cities.

David A. Rosenfeld, Weinberg Roger & Rosenfeld, Alameda,

California, for Amici Curiae Communications Workers of

America, National Digital Inclusion Alliance, and Public

Knowledge.

Jane Luckhardt, General Counsel, Northern California Power

Agency, Roseville, California; Jody Lamar Finklea, General

Counsel & Chief Legal Officer; Dan O’Hagan, Assistant

General Counsel & Regulatory Compliance Counsel; Florida

Municipal Power Agency, Tallahassee, Florida; James N.

Horwood and Latif M. Nurani, Spiegel & McDiarmid LLP,
28 CITY OF PORTLAND V. UNITED STATES

Washington, D.C.; for Amici Curiae Northern California

Power Agency; Municipal Electric Power Association of

Virginia; Florida Municipal Electric Association, Inc.; City

of Fort Meade; Fort Pierce Utilities Authority; City of

Jacksonville Beach (Beaches Energy Services); Utility Board

of the City of Key West, Florida (Keys Energy Services);

Kissimmee Utility Authority; City of Lakeland (Lakeland

Electric); City of Mount Dora; Utilities Commission, City of

New Smyrna Beach; Orlando Utilities Commission; and City

of Wauchula.
CITY OF PORTLAND V. UNITED STATES 29

OPINION

SCHROEDER, Circuit Judge:

I. INTRODUCTION

These matters arise out of the wireless revolution that has

taken place since 1996 when Congress passed amendments to

the Telecommunications Act to support the then nascent

technology. The revolution now represents the triumph of

cellular technology over just about everything else in

telecommunications services.

The newest generation of wireless broadband technology

is known as “5G” and requires the installation of thousands

of “small cell” wireless facilities. These facilities have

become subject to a wide variety of local regulations. The

Federal Communications Commission (FCC) in 2018

therefore promulgated orders relating to the installation and

management of small cell facilities, including the manner in

which local governments can regulate them. The principal

orders we review here thus constitute the FCC’s

contemporary response to these technological and regulatory

developments. These orders were promulgated under the

authority of a statute Congress enacted very early in the era

of cellular communication, the Telecommunications Act of

1996, to encourage the expansion of wireless

communications.

That expansion has been met with some resistance where

5G is concerned, however, particularly from local

governments unhappy with the proliferation of cell towers

and other 5G transmission facilities dotting our urban

landscapes. Petitioners seeking review of the FCC orders
30 CITY OF PORTLAND V. UNITED STATES

thus include numerous local governments, the lead Petitioner

being the City of Portland, Oregon. Also unhappy with the

expanded installation of 5G technology contemplated by the

FCC’s orders are public and private power utilities, whose

utility poles are often used for wireless facility deployment. 

Here as well are wireless service providers, who largely

support the FCC’s orders, but argue the FCC should have

gone even further in restricting the authority of state and local

governments.

Before us are three FCC orders, issued in 2018, that deal

with myriad issues arising from the application of a twentieth

century statute to twenty-first century technology. The two

orders we deal with first are known as the Small Cell Order

and the Moratoria Order. Accelerating Wireless Broadband

Deployment by Removing Barriers to Infrastructure Inv.,

33 FCC Rcd. 9088 (2018) [hereinafter Small Cell Order];

Accelerating Wireless Broadband Deployment by Removing

Barriers to Infrastructure Inv., 33 FCC Rcd. 7705, 7775–91

(2018) [hereinafter Moratoria Order]. The Orders spell out

the limits on local governments’ authority to regulate

telecommunications providers.

The FCC’s statutory authority for limiting local regulation

on the deployment of this technology is contained in Sections

253(a) and 332(c)(7) of the Act and reflects congressional

intent in 1996 to expand deployment of wireless services. 

Those provisions authorize the FCC to preempt any state and

local requirements that “prohibit or have the effect of

prohibiting” any entity from providing telecommunications

services. See 47 U.S.C. § 253(a), (d).

Many of the issues before us concern whether challenged

provisions constitute excessive federal regulation outside the
CITY OF PORTLAND V. UNITED STATES 31

scope of that congressional preemption directive, as

understood by our Circuit’s leading case interpreting the

statute, Sprint Telephony PCS, L.P. v. County of San Diego,

543 F.3d 571 (9th Cir. 2008) (en banc). We conclude that,

given the deference owed to the agency in interpreting and

enforcing this important legislation, the Small Cell and

Moratoria Orders are, with the exception of one provision, in

accord with the congressional directive in the Act, and not

otherwise arbitrary, capricious, or contrary to law. See

5 U.S.C. § 706(2)(A).

The exception is the Small Cell Order provision dealing

with the authority of local governments in the area of

aesthetic regulations. We hold that to the extent that

provision requires small cell facilities to be treated in the

same manner as other types of communications services, the

regulation is contrary to the congressional directive that

allows different regulatory treatment among types of

providers, so long as such treatment does not “unreasonably

discriminate among providers of functionally equivalent

services.” 47 U.S.C § 332(c)(7)(B)(i)(I). We also hold that

the FCC’s requirement that all aesthetic criteria must be

“objective” lacks a reasoned explanation.

The third FCC order before us is intended to prevent

owners and operators of utility poles from discriminatorily

denying or delaying 5G and broadband service providers

access to the poles. Accelerating Wireless Broadband

Deployment by Removing Barriers to Infrastructure Inv.,

33 FCC Rcd. 7705, 7705–91 (2018). Known as the “OneTouch Make-Ready Order,” it was issued pursuant to the Pole

Attachment Act originally passed in 1978 and expanded in

the wake of the Telecommunications Act of 1996. 47 U.S.C.

§ 224. Section 224 of that Act allows utilities to deny access
32 CITY OF PORTLAND V. UNITED STATES

to pole attachers under some circumstances. Several utilities

object to discrete aspects of the One-Touch Make-Ready

Order. We uphold the Order, concluding that the FCC

reasonably interpreted Section 224 as a matter of law, and the

Order is not otherwise arbitrary or capricious.

II. STATUTORY AND INTERPRETIVE

FRAMEWORK AND BACKGROUND

What we know as 5G technology is so named because it

is the fifth generation of cellular wireless technology. It is

seen as transformational because it provides increased

bandwidth, allows more devices to be connected at the same

time, and is so fast that connected devices receive near

instantaneous responses from servers.

Although 5G transmits data at exceptionally fast speeds,

it does so over relatively short distances. For this reason,

wireless providers must use smaller power-base stations in

more locations, as opposed to the fewer, more powerful base

stations used for 4G data transmission. These smaller base

stations, known as “small cells,” are required in such numbers

that 5G technology is currently being deployed on a city-bycity basis. See generally Brian X. Chen, What You Need to

Know About 5G in 2020, N.Y. Times (Jan. 8, 2020),

https://www.nytimes.com/2020/01/08/technology/personalt

ech/5g-mobile-network.html?searchResultPosition=1; Clare

Duffy, What Is 5G? Your Questions Answered, CNN

Business (Mar. 6, 2020), https://www.cnn.com/interactive/

2020/03/business/what-is-5g/index.html; Sascha Segan, What

Is 5G?, PCMag (Apr. 6, 2020), https://www.pcmag.com/ne

ws/what-is-5g. The prospective proliferation of “small cell”

structures throughout our cities, coupled with the inevitable

efforts of local governments to regulate their looks and
CITY OF PORTLAND V. UNITED STATES 33

location, gave rise to the FCC’s Small Cell and Moratoria

Orders—with which local governments are not entirely happy

and which were issued under the general provisions of a

decades-old statute.

The heart of these proceedings therefore lies in the early

efforts of Congress, and now the FCC, to balance the

respective roles of the federal government and local agencies

in regulating telecommunications services for a rapidly

changing technological world. A key statute in these

proceedings is Section 253 of the Act. Entitled “Removal of

Barriers to Entry,” it reflects Congress’s intent to encourage

expansion of telecommunication service. Section 253(a)

provides that “[n]o state or local statute or regulation . . . may

prohibit or have the effect of prohibiting . . .

telecommunications service.” 47 U.S.C. § 253(a). At the

same time Section 253(c) provides that state or local

governments can manage public rights-of-way and require

reasonable compensation for their use. 47 U.S.C. § 253(c).

In dealing with mobile services, Section 332(c)(7)

similarly preserves local zoning authority while recognizing

some specific limitations on traditional authority to regulate

wireless facilities. 47 U.S.C. § 332(c)(7); see City of Rancho

Palos Verdes v. Abrams, 544 U.S. 113, 115 (2005)

(explaining that section 332(c)(7) “imposes specific

limitations on the traditional authority of state and local

governments to regulate the location, construction, and

modification of . . . facilities”). Section 332(c)(7) also

contains a limitation on local authority nearly identical to

Section 253(a). See 47 U.S.C. § 332(c)(7)(B)(i)(II) (“The

regulation of the placement, construction, and modification

of personal wireless service facilities by any State or local

government . . . shall not prohibit or have the effect of
34 CITY OF PORTLAND V. UNITED STATES

prohibiting the provision of personal wireless services.”). 

The other major limitation on local authority relates to

ensuring fair treatment of different services. See 47 U.S.C.

§ 332(c)(7)(B)(i)(I). Under that limitation, local governments

“shall not unreasonably discriminate among providers of

functionally equivalent services.” Id. Section 332(c)(7)

further requires that state or local governments act on

requests for placement of personal wireless service facilities

“within a reasonable period of time.” 47 U.S.C.

§ 332(c)(7)(B)(ii). We deal with issues pertaining to all of

these provisions in the challenges to the Small Cell and

Moratoria Orders.

In the One-Touch Make-Ready Order, the FCC was

concerned with facilitating attachment of new cellular

facilities to existing utility poles. The FCC’s authority to

regulate pole attachments is found in Section 224 of the Act. 

That section provides that the FCC “shall regulate the rates,

terms, and conditions” imposed upon pole attachments by

utilities to ensure that such rates are “just and reasonable,”

47 U.S.C. § 224(b)(1), but expressly exempts entities “owned

by the Federal Government or any State” from its definition

of “utility,” id. § 224(a)(1). Section 224 also requires utilities

to allow service providers “nondiscriminatory access” to its

poles, id. § 224(f)(1), permitting utilities to deny access “on

a non-discriminatory basis where there is insufficient capacity

and for reasons of safety, reliability and generally applicable

engineering purposes,” id. § 224(f)(2).

In their petitions, private utilities contend several

provisions of the One-Touch Make-Ready Order violate

Section 224 or are otherwise arbitrary or capricious in

restricting a utility’s ability to deny access to attachers. We

uphold this Order in all respects.
CITY OF PORTLAND V. UNITED STATES 35

As relevant to this litigation, the most disputed provision

of the Act has been Section 253(a). The provision says 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.” 47 U.S.C.

§ 253(a). Soon after the Act’s passage, the FCC decided

California Payphone Association, concerning the location of

the now antiquated, but formerly ubiquitous, payphone

technology. 12 FCC Rcd. 14,191 (1997). The FCC

considered a local regulation that prohibited the installation

of payphones on private property outdoors, and held it was

not an actual or effective prohibition of services, because

phones could still be installed indoors on public or private

property, and outdoors on public property. Id. at 14,210. The

FCC therefore held the requirement did not “materially

inhibit[]” payphone service. Id. at 14,210.

This court’s leading case interpreting Section 253 is our

en banc decision in Sprint, 543 F.3d 571. We there

straightened out an errant panel decision that had been

concerned with the phrase “no State or local statute or

regulation . . . may prohibit . . . ” in Section 253. That

decision read the phrase to mean that Section 253 preempted

any state or local regulation that “might possibly” have the

effect of prohibiting service. Id. at 578. We held in Sprint

that more than “the mere possibility” of prohibition was

required to trigger preemption. Id. There must be an actual

effect, and we recognized the continuing validity of the

material inhibition test from California Payphone. See id.

(“[W]e note that our interpretation is consistent with the

FCC’s.”).
36 CITY OF PORTLAND V. UNITED STATES

Many of the issues we must decide here involve

contentions by Petitioners that various provisions of the

Small Cell and Moratoria Orders limit state and local

regulatory authority to a greater degree than that

contemplated in the Act, as interpreted by California

Payphone and Sprint. The application of the FCC’s “material

inhibition” standard thus comes into play when we consider

a number of the challenged provisions.

As a threshold issue, Local Government Petitioners argue

that the FCC must demonstrate that an “actual prohibition” of

services is occurring before preempting any municipal

regulations, and that anything less than that showing is

contrary to Section 253(a) and our decision in Sprint. We

must reject this argument. The FCC’s application of its

standard in the Small Cell and Moratoria Orders is consistent

with Sprint, which endorsed the material inhibition standard

as a method of determining whether there has been an

effective prohibition. The FCC here made factual findings,

on the basis of the record before it, that certain municipal

practices are materially inhibiting the deployment of 5G

services. Nothing more is required of the FCC under Sprint.

Local Government Petitioners raise a corollary general

objection to the Small Cell and Moratoria Orders, contending

that the FCC, without a reasoned explanation, has departed

from its prior approach in California Payphone, and has made

it much easier to show an effective prohibition. California

Payphone’s material inhibition standard remains controlling,

however. The FCC has explained that it applies a little

differently in the context of 5G, because state and local

regulation, particularly with respect to fees and aesthetics, is

more likely to have a prohibitory effect on 5G technology

than it does on older technology. The reason is that when
CITY OF PORTLAND V. UNITED STATES 37

compared with previous generations of wireless technology,

5G is different in that it requires rapid, widespread

deployment of more facilities. See, e.g., Small Cell Order

¶ 53 (explaining that “even fees that might seem small in

isolation have material and prohibitive effects on deployment,

particularly when considered in the aggregate given the

nature and volume of anticipated Small Wireless Facility

deployment” (footnote omitted)). The differences in the

FCC’s new approach are therefore reasonably explained by

the differences in 5G technology.

We therefore turn to Petitioners’ challenges to specific

provisions of the Orders. We deal with the Small Cell and

Moratoria Orders together. Both Orders relate to the ways

state and local governments can permissibly regulate small

cell facilities.

III. SMALL CELL AND MORATORIA ORDERS

The FCC initiated proceedings leading to the Small Cell

and Moratoria Orders in response to complaints from wireless

service providers. They reported that a variety of state and

local regulations and practices were delaying and inhibiting

small cell deployment nationwide in violation of Section 253. 

Those state and local governments now seek review of the

Orders. We here summarize the challenged provisions of

each Order.

The FCC issued the Moratoria Order in August 2018, and

the Small Cell Order the following month. Two principal

types of state and local regulation the agency considered

relate to fees and aesthetic requirements. The FCC concluded

such requirements frequently materially inhibit 5G

deployment. The FCC found that when state and local
38 CITY OF PORTLAND V. UNITED STATES

governments charge excessive fees for wireless facility

applications, the cumulative impact of such charges amounts

to an effective prohibition of deployment in other parts of the

country. The FCC therefore limited the fees that a state or

local government can assess, above a safe harbor amount, to

the government’s approximate costs. Specifically, the fee is

permissible only if it is a “reasonable approximation of the

state or local government’s costs” of processing applications

and managing the rights-of-way. Small Cell Order ¶ 50.

With respect to local aesthetic requirements, the FCC

concluded such regulations were materially inhibiting small

cell deployment within the meaning of the California

Payphone standard. A key provision of the Small Cell Order

sets out the applicable criteria: aesthetic restrictions are

preempted unless they are (1) reasonable, (2) no more

burdensome than requirements placed on other facilities, and

(3) objective and published in advance. Id. ¶ 86. To qualify

as a “reasonable” aesthetic requirement, an ordinance must be

both “technically feasible and reasonably directed to avoiding

or remedying the intangible public harm of unsightly or outof-character deployments.” Id. ¶ 87.

Another important provision of the Small Cell Order

modified the rules for when local jurisdictions have to act on

wireless permitting requests, the so-called “shot clock” rules. 

Nearly a decade earlier, the FCC adopted the first shot clock

rules, requiring zoning authorities to decide applications for

wireless facility deployment on existing structures within

ninety days, and all other applications for zoning permits

within 150 days. Petition for Declaratory Ruling, 24 FCC

Rcd. 13,994 (2009) [hereinafter 2009 Order]; see City of

Arlington v. FCC, 668 F.3d 229, 235–36 (5th Cir. 2012),

aff’d, 569 U.S. 290 (2013). Under the 2009 Order, when a
CITY OF PORTLAND V. UNITED STATES 39

local zoning authority exceeded a shot clock, it was presumed

that the municipality violated the statutory requirement to

respond within a reasonable time. City of Arlington, 668 F.3d

at 236. When a local zoning authority failed to act within the

proscribed time, the permit applicant could then file a lawsuit

seeking a declaration that the city’s delay was unreasonable,

and the city would have the opportunity to rebut the presumed

statutory violation. 2009 Order ¶¶ 37–38.

The 2018 Small Cell Order broadens the application of

these shot clocks to include all telecommunications permits,

not just zoning permits, and it shortens the shot clocks. State

and local governments now have sixty days to decide

applications for installations on existing infrastructure, and

ninety days for all other applications. Small Cell Order

¶¶ 104–05, ¶ 132, ¶ 136. The Order does not add

enforcement mechanisms. If a state or local government

misses a permitting deadline, the applicant still must seek an

injunction.

In the Moratoria Order, the FCC found that municipal

actions that halt 5G deployment, deemed “moratoria,” violate

Section 253(a) of the Act when they effectively prohibit the

deployment of 5G technology. The FCC recognized two

general moratoria categories: express and de facto. As with

the Small Cell Order, the Moratoria Order does not

specifically preempt or invalidate any particular state or local

requirement. See Moratoria Order ¶ 150. (“[W]e do not

reach specific determinations on the numerous examples

discussed by parties in our record . . . .”). It lays out the

applicable standards.
40 CITY OF PORTLAND V. UNITED STATES

A. Challenges to the Small Cell Order

Following the publication of the Small Cell Order, Local

Government and Public Power Petitioners filed these

petitions for review, asserting a number of legal challenges. 

We evaluate these challenges under the Administrative

Procedure Act by examining whether “an agency’s decreed

result [is] within the scope of its lawful authority,” and

whether “the process by which it reaches [a given] result [is]

logical and rational.” Michigan v. EPA, 135 S. Ct. 2699,

2706 (2015) (internal quotation marks omitted); see 5 U.S.C.

§ 706(2)(A), (C). Where terms of the Telecommunications

Act are ambiguous, we defer to the FCC’s reasonable

interpretations. City of Arlington, 569 U.S. at 296–97; see

Chevron v. Nat. Res. Def. Council, 467 U.S. 837 (1984). And

where the FCC is departing from prior policy, we look to see

if it acknowledged that it was changing positions, and gave

“good reasons for the new policy.” FCC v. Fox Television

Stations, Inc., 556 U.S. 502, 515 (2009).

To the extent that Petitioners challenge factual findings,

we review them for substantial evidence, that is, evidence “a

reasonable mind might accept as adequate to support a

conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154

(2019) (internal quotation marks omitted). “[W]hatever the

meaning of substantial in other contexts, the threshold for

such evidentiary sufficiency is not high.” Id. (internal

quotation marks omitted).

The Small Cell Order covers three major subjects and sets

out the standards by which local regulations will be judged in

determining whether they are preempted. Local Government

Petitioners are not happy with any of them. The subjects are
CITY OF PORTLAND V. UNITED STATES 41

fees, aesthetics, and the time for approving permit

applications (shot clocks). We deal with each of them in turn.

1. Fees

State and local governments generally charge a wireless

service provider fees to deploy facilities in their jurisdictions. 

These fees include one-time fees for new wireless facility

deployment, as well as recurring annual fees on existing

facilities in the public rights-of-way. The FCC concluded in

the Small Cell Order that some of these fees were so

excessive that they were effectively prohibiting the

nationwide deployment of 5G technology and were therefore

preempted. The Order places conditions on fees above a

certain level to avoid preemption: fees must be: “(1) a

reasonable approximation of the state or local government’s

costs, (2) [with] only objectively reasonable costs . . . factored

into those fees, and (3) . . . no higher than the fees charged to

similarly-situated competitors in similar situations.” Small

Cell Order ¶ 50 (footnote omitted).

The Small Cell Order does not require a cost basis for all

fees to avoid preemption. There is a safe harbor. Fees are

presumptively lawful if, for each wireless facility, application

fees are less than $500, and recurring fees are less than $270

per year. Id. ¶ 79. If fees exceed those levels, they are not

automatically preempted, but can be justified. Localities may

charge fees above these levels where they can demonstrate

that their actual costs exceed the presumptive levels. Id. ¶ 80

& n.234.

The FCC offers two principal rationales for limiting fees

above the safe harbor to costs. When local governments

charge fees in excess of their costs, they take funds of
42 CITY OF PORTLAND V. UNITED STATES

wireless service providers that would otherwise be used for

additional 5G deployment in other jurisdictions. Statements

in the record from wireless service providers, and an

empirical study, are cited to support the conclusion that

limiting fees will lead to additional, faster deployment of 5G

technology throughout the country. See Small Cell Order

¶¶ 61–64. The FCC explained that high fees also reduce the

availability of service in the jurisdiction charging the fee. Id.

¶ 53. The FCC points to numerous, geographically diverse

cities, where excessive fees are delaying deployment of 5G

services. In one example, deployment had to be completely

halted when a city tried to charge a one-time fee of $20,000

per small cell, with an additional recurring annual fee of

$6000.

Local Government Petitioners challenge the fee

limitations on a number of grounds. Their primary argument

is that there is no rational connection between whether a

particular fee is higher than that particular city’s costs, and

whether that fee is prohibiting service.

The FCC did not base its fee structure on a determination

that there was a relationship between particular cities’ fees

and prohibition of services. The FCC instead found that

above-cost fees, in the aggregate, were having a prohibitive

effect on a national basis. See id. ¶ 53 (explaining that “even

fees that might seem small in isolation have material and

prohibitive effects on deployment, particularly when

considered in the aggregate given the nature and volume of

anticipated Small Wireless Facility deployment” (footnote

omitted)).

The FCC found there was no readily-available alternative. 

See id. ¶ 65 n.199 (explaining that “the record does not reveal
CITY OF PORTLAND V. UNITED STATES 43

an alternative, administrable approach to evaluating fees

without a cost-based focus”). Administrability is important. 

In Mayo Foundation for Medical Education & Research v.

United States, 562 U.S. 44, 58–59 (2011), the Supreme Court

explained that an agency’s rule “easily” satisfies Chevron’s

step two, reasonable interpretation requirement, when the

agency concluded that its new approach would “improve

administrability.” As the FCC explained here, its cost-based

standard would prevent excessive fees and the effective

prohibition of 5G services in many areas across the country.

Local Government Petitioners are implicitly suggesting an

alternative approach that would require an examination of the

prohibitive effect of fees in each of the 89,000 state and local

governments under the FCC’s jurisdiction, a nearly

impossible administrative undertaking. Local Government

Petitioners do not contend that this is required by statute, nor

do they offer any other workable standard. The FCC here

made the requisite “rational connection between the facts

found and the choice made.” Burlington Truck Lines v.

United States, 371 U.S. 156, 168 (1962).

Our colleague’s partial dissent offers one legal objection

to the fee regulation. The dissent quotes language from our

decision in Qwest Communications Inc. v. City of Berkeley,

433 F.3d 1253, 1257 (9th Cir. 2006), overruled on other

grounds by Sprint Telephony, 543 F.3d at 578, to suggest that

the FCC’s cost based fee regulation should be vacated

because it contravenes our precedent. In Qwest, however, we

considered a challenge to a particular city’s fee that was not

based on costs. On the basis of then-binding authority we

held that city’s fee was preempted, but cautioned that we

were not holding that “all non-cost based fees are

automatically preempted.” Id. at 1257. Instead we said that
44 CITY OF PORTLAND V. UNITED STATES

in reviewing a particular city’s ordinance “courts must

consider substance of the particular regulation at issue.” Id.

The Qwest language has no relevance in this case where

we review a nationwide administrative regulation the FCC

has adopted, after careful study and notice and comment, that

invokes Section 253(a) to preempt only those fees above the

safe harbor that exceed municipalities’ costs. There has been

no “automatic preemption” of “all non-cost based fees.”

Local Government Petitioners also attack the FCC’s key

factual finding, that high fees were inhibiting deployment

both within and outside the jurisdictions charging the fees. 

Yet, the FCC had statements from wireless service providers,

which explained that the providers have been unable to

deploy small cells in many cities because both original

application and annually recurring fees were excessive. For

example, AT&T reported it has been unable to deploy in

Portland due to recurring annual fees ranging from $3500 to

$7500 per node.

The record also supports the FCC’s factual conclusion

that high fees in one jurisdiction can prevent deployment in

other jurisdictions. In addition to relying on firsthand reports

of service providers, the FCC looked to an academic study,

known as the Corning Study. A group of economists there

estimated that limiting 5G fees could result in carriers

reinvesting an additional $2.4 billion in areas “previously not

economically viable.” The FCC reasonably relied upon this

study to support its conclusion that a nationwide reduction in

fees in “must-serve,” heavily-populated areas, would result in

significant additional deployment of 5G technology in other

less lucrative areas of the country. The FCC therefore has

easily met the standard of offering “more than a mere
CITY OF PORTLAND V. UNITED STATES 45

scintilla” of evidence to support its conclusions regarding the

prohibitive effect of above-cost fees. See Biestek, 139 S. Ct.

at 1154.

We also conclude that the FCC’s fee limitation does not

violate Section 253(c) of the Act, which ensures that cities

receive “fair and reasonable” compensation for use of their

rights-of-way. The FCC explained that the calculation of

actual, direct costs is a well-accepted method of determining

reasonable compensation, and further, that a standard lacking

a cost anchor would “have left providers entirely at the mercy

of effectively unconstrained requirements of state or local

governments.” Small Cell Order ¶ 74. The statute requires

that compensation be “fair and reasonable;” this does not

mean that state and local governments should be permitted to

make a profit by charging fees above costs. 47 U.S.C.

§ 253(c). The FCC’s approach to fees is consistent with the

language and intent of Section 253(c) and is reasonably

explained.

Moreover, the FCC did not require local jurisdictions to

justify all fees with costs. The FCC adopted presumptively

permissible fee levels. In setting those levels, the FCC

looked to a range of sources, including state laws that limit

fees. See Small Cell Order ¶ 78, ¶ 79 n.233. Local

Government Petitioners argue that the FCC was in effect,

setting rates, and that it was arbitrary and capricious to do so,

when it could reference only a few state laws. The FCC was

not setting rates, however; it was determining a level at which

fees would be so clearly reasonable that justification was not

necessary, and litigation could be avoided. The presumptive

levels are not arbitrary and capricious.
46 CITY OF PORTLAND V. UNITED STATES

2. Aesthetics

Local governments have always been concerned about

where utilities’ infrastructure is placed and what it looks like. 

When Congress enacted the 1996 Telecommunications Act,

it wanted to ensure state and local governments grant fair

access to new technologies, and not prefer incumbent service

providers over new entrants. Congress recognized that state

and local governments could effect such preferential

treatment through a wide array of regulations, including

regulations on aesthetics. An important provision to prevent

this is Section 332(c)(7)(B)(i)(I). It requires that “[t]he

regulation of . . . personal wireless service facilities by any

State or local government . . . shall not unreasonably

discriminate among providers of functionally equivalent

services.” 47 U.S.C. § 332(c)(7)(B)(i)(I). The legislators

who drafted this limitation on local regulation sought to

ensure that state and local governments did not “unreasonably

favor one competitor over another” in exercising their

regulatory authority over facility deployments—including

authority to regulate aesthetics. S. Rep. No. 104-230, at 209

(1996) (Conf. Rep.).

Because it recognized that state and local governments

often have legitimate aesthetic reasons for accepting some

deployments and rejecting others, Congress preempted only

regulations that “unreasonably discriminate” among

providers. 47 U.S.C. § 332(c)(7)(B)(i)(I). Because there

were differences among providers, those who crafted Section

332(c) sought to preserve state and local governments’

“flexibility to treat facilities that create different . . . aesthetic

. . . concerns differently, . . . even if those facilities provide

functionally equivalent services.” S. Rep. No. 104-230, at

209 (1996) (Conf. Rep.).
CITY OF PORTLAND V. UNITED STATES 47

The provisions of the Small Cell Order dealing with

aesthetics are among the most problematic. The Order says,

“aesthetics requirements are not preempted if they are (1)

reasonable, (2) no more burdensome than those applied to

other types of infrastructure deployments, and (3) objective

and published in advance.” Small Cell Order ¶ 86.

In the Small Cell Order, the FCC does not use Section

332’s unreasonable discrimination standard in describing the

limits on local regulation of small cell infrastructure. The

Small Cell Order says instead that small cell aesthetic

requirements must be “no more burdensome” than those

imposed on other providers. Id. For example, the FCC

explained that its standard would prohibit a requirement that

small cell carriers “paint small cell cabinets a particular color

when like requirements were not imposed on similar

equipment placed in the [right-of-way] by electric

incumbents, competitive telephone companies, or cable

companies.” Id. ¶ 84 n.241.

Local Government Petitioners point out that the FCC’s

standard amounts to requiring similar treatment and does not

take into account the differences among technologies. The

FCC’s own justification for its provision bears this out. The

FCC asserts that any application of different aesthetic

standards to 5G small cells necessarily “evidences that the

requirements are not, in fact, reasonable and directed at

remedying the impact of the wireless infrastructure

deployment.” Id. ¶ 87. Thus, in the FCC’s view, when a

state or local government imposes different aesthetic

requirements on 5G technology, those requirements are

pretextual, unrelated to legitimate aesthetic goals, and must

be preempted.
48 CITY OF PORTLAND V. UNITED STATES

Yet the statute expressly permits some difference in the

treatment of different providers, so long as the treatment is

reasonable. Indeed, we have previously recognized that

Section 332(c)(7)(B)(i)(I) of the Telecommunications Act

“explicitly contemplates that some discrimination among

providers . . . is allowed.” MetroPCS, Inc. v. City & Cty. of

S.F., 400 F.3d 715, 727 (9th Cir. 2005) (internal quotation

marks omitted), abrogated on other grounds by T-Mobile S.,

LLC v. City of Roswell, 574 U.S. 293 (2015). We explained

that to establish unreasonable discrimination, providers “must

show that they have been treated differently from other

providers whose facilities are similarly situated in terms of

the structure, placement or cumulative impact as the facilities

in question.” Id. (citation and internal quotation marks

omitted). We explained that this “similarly-situated”

standard is derived from the text of Section 332, and

“strike[s] an appropriate balance between Congress’s twin

goals of promoting robust competition and preserving local

zoning authority.” Id. at 728.

The FCC’s regulation here departs from the carefully

crafted balance found in Section 332 in at least two critical

respects. Unlike Section 332, the regulation does not permit

even reasonable regulatory distinctions among functionally

equivalent, but physically different services. Under this

Order, any local regulation of 5G technology that creates

additional costs is necessarily preempted. The FCC’s

limitation on local zoning authority differs from Section 332

in another respect. The Order requires the comparison of the

challenged aesthetic regulation of 5G deployments to the

regulation of any other infrastructure deployments, while the

statute only requires a comparison with the regulation of

functionally equivalent infrastructure deployments. Small

Cell Order ¶ 87. The prohibition on local regulatory
CITY OF PORTLAND V. UNITED STATES 49

authority in the regulation is in that respect broader than that

contemplated by Congress.

The Supreme Court has told us that “an agency may not

rewrite clear statutory terms” and that this is a “core

administrative-law principle.” Util. Air Regulatory Grp. v.

EPA, 573 U.S. 302, 328 (2014). The FCC has contravened

this principle here by placing a limitation on local zoning

authority that departs from the explicit directive of Congress

in Section 332.

Congress prohibited unreasonable discrimination, but

permitted state and local governments to differentiate in the

regulation of functionally equivalent providers with very

different physical infrastructure. Members of Congress, in

writing Section 332, recognized that applying different

standards for physically different infrastructure deployments

may, in some situations, be a reasonable use of local zoning

authority. See S. Rep. No. 104-230, at 208 (1996) (Conf.

Rep.) (“For example, the conferees do not intend that if a

state or local government grants a permit in a commercial

district, it must also grant a permit for a competitor’s 50-foot

tower in a residential district.”). Requirements imposed on

5G technology are not always preempted as unrelated to

legitimate aesthetic concerns just because they are “more

burdensome” than regulations imposed on functionally

equivalent services. We therefore conclude that the

requirement in Paragraph 86 of the Small Cell Order, that

limitations on small cells be “no more burdensome” than

those applied to other technologies, must be vacated.

The other problematic limitation in the Small Cell Order

is that locally-imposed aesthetic requirements be “objective

and published in advance.” Small Cell Order ¶ 86. The
50 CITY OF PORTLAND V. UNITED STATES

Order defines “objective” to mean the local regulation “must

incorporate clearly-defined and ascertainable standards,

applied in a principled manner.” Id. ¶ 88.

The FCC explained that it adopted this requirement in

response to wireless service providers’ complaints that they

were being kept in the dark about what requirements they had

to meet, and that those requirements were often so subjective

that they had no readily ascertainable meaning. As the Order

explained, the providers complained that they are unable to

“design or implement rational plans for deploying Small

Wireless Facilities if they cannot predict in advance what

aesthetic requirements they will be obligated to satisfy to

obtain permission to deploy a facility at any given site.” Id. 

The FCC responded by requiring aesthetic regulations to be

“objective and published in advance.” Id. ¶ 86. The

condition of advance publication is not seriously challenged,

but the requirement that all local aesthetic regulation be

“objective” gives rise to serious concerns.

Although the FCC was apparently responding to

complaints of vague standards, Local Government Petitioners

point out that the provision the FCC adopted bars any

regulation other than one related to color, size, shape, and

placement. It targets for preemption regulations focused on

legitimate local objectives, such as ordinances requiring

installations to conform to the character of the neighborhood. 

We do not see how all such regulations, designed like

traditional zoning regulations to preserve characteristics of

particular neighborhoods, materially inhibit, materially limit,

or effectively prohibit the deployment of 5G technology.

We have previously expressed considerable doubt about

the view that “malleable and open-ended,” aesthetic criteria
CITY OF PORTLAND V. UNITED STATES 51

per se prohibit service. Sprint, 543 F.3d at 580. In Sprint, we

recognized that “[a] certain level of discretion is involved in

evaluating any application for a zoning permit,” and that

while “[i]t is certainly true that a zoning board could exercise

its discretion to effectively prohibit” service, “it is equally

true (and more likely) that a zoning board would exercise its

discretion only to balance the competing goals of an

ordinance,” including “valid public goals such as safety and

aesthetics.” Id.

The FCC’s position that all subjective aesthetic

regulations constitute a per se material inhibition must

therefore be viewed with considerable skepticism. Its

justification for this limitation is that all subjective aesthetic

requirements “substantially increase providers’ costs without

providing any public benefit or addressing any public harm.” 

Small Cell Order ¶ 88. This conclusion, that all subjective

standards are without public benefit and address no public

harm, is unexplained and unexplainable.

The FCC says that its objectivity requirement is “feasible”

because some states have adopted laws that prevent cities

from applying subjective aesthetic requirements. See id.

nn.246–47. As the FCC itself recognizes in its brief, aesthetic

regulation of small cells should be directed to preventing the

“intangible public harm of unsightly or out-of-character

deployments.” Such harm is, at least to some extent,

necessarily subjective. The fact that certain states have

prohibited municipalities from enacting subjective aesthetic

standards does not demonstrate that such standards never

serve a public purpose. We conclude that the FCC’s

requirement that all aesthetic regulations be “objective” is

arbitrary and capricious. At the very least, the agency must

explain the harm that it is addressing, and the extent to which
52 CITY OF PORTLAND V. UNITED STATES

it intends to limit regulations meant to serve traditional

zoning objectives of preventing deployments that are

unsightly or out of neighborhood character.

The only remaining argument of Local Government

Petitioners with which we must deal is a challenge to the

FCC’s requirement that aesthetic regulations be “reasonable.” 

Petitioners contend that it is unduly vague and overbroad. 

We read this requirement as the FCC does, however, and

conclude that it should be upheld. The FCC explains that the

reasonableness requirement results in preemption only if

aesthetic regulations are not “technically feasible and

reasonably directed” at remedying aesthetic harms. Id. ¶ 87. 

We recognized in Sprint that imposing an aesthetic

requirement that is not technically feasible would constitute

an effective prohibition of service under the Act. 543 F.3d at

580. The FCC’s justification for adopting this rule is

therefore consistent with our case law, as well as

congressional intent in enacting Sections 253 and 332, and is

not unduly vague or overbroad.

In sum, the requirement that aesthetic regulations be “no

more burdensome” than those imposed on other technologies

is not consistent with the more lenient statutory standard that

regulations not “unreasonably discriminate.” The

requirement that local aesthetic regulations be “objective” is

neither adequately defined nor its purpose adequately

explained. On its face, it preempts too broadly. We therefore

hold those provisions of Paragraph 86 of the Small Cell Order

must be vacated.
CITY OF PORTLAND V. UNITED STATES 53

3. Shot Clocks

Since 2009, the FCC has set time limits, known as shot

clocks, for local authorities to act on applications to deploy

wireless facilities. In the Small Cell Order, the FCC made

two major changes from the shot clocks provisions in the

2009 Order. It expanded the application of shot clock timing

requirements from zoning applications to include all

permitting decisions. It shortened the shot clock time. State

and local governments now have sixty days to decide

applications for installation on existing infrastructure, and

ninety days for all other applications. Small Cell Order

¶¶ 104–05, ¶ 132, ¶ 136. The previous shot clocks were

ninety days and 150 days respectively. Id. ¶ 104.

To remedy a violation of the 2009 requirements, the

applicant had to seek an injunction. During this rulemaking,

providers urged the FCC to adopt a “deemed granted”

remedy, i.e. where, at the expiration of a shot clock, a permit

would be “deemed granted” and the city would have to file a

lawsuit to prevent the wireless service provider from

beginning construction. The FCC ultimately did not change

the remedy, so under the Small Cell Order, when a state or

local government misses a shot clock deadline for deciding an

application, the applicant must still seek injunctive relief. 

Wireless Service Provider Petitioners (Sprint et al.) now

challenge the FCC’s refusal to adopt a deemed granted

remedy for shot clock violations.

Local Government Petitioners are unhappy with the

shortened time limits for decisions on applications, and with

the expansion of shot clocks beyond zoning applications to all

applications for deployment of wireless services. We

consider their challenges first.
54 CITY OF PORTLAND V. UNITED STATES

Local Government Petitioners attack the shortened shot

clock time frames, contending they arbitrarily restrict

municipalities’ ability to conduct traditional zoning review

that may take longer than the prescribed shot clock

requirements. Petitioners criticize the FCC’s reliance on a

limited survey of state and local laws, contending that those

laws had unusual, shorter time frame requirements. 

Petitioners contend that most state and local governments will

be unable to decide permits within the time limits prescribed

under the Small Cell Order.

The FCC’s reliance on the survey of local laws and

practices was reasonable, however, because it served only a

limited purpose. The FCC used the survey only to support its

unremarkable assertion that some municipalities “can

complete reviews more quickly than was the case when the

existing Section 332 shot clocks were adopted” in 2009. 

Small Cell Order ¶ 106. It must be remembered that the shot

clock requirements create only presumptions. As under the

2009 Order, if permit applicants seek an injunction to force

a faster decision, local officials can show that additional time

is necessary under the circumstances. Id. ¶ 137; see id. ¶ 109,

¶ 127; see also City of Arlington, 668 F.3d at 259–61

(upholding previous FCC shot-clock presumptions).

The Telecommunications Act itself supports the

expansion of shot clocks to all permitting decisions. Section

332(c)(7)(B)(ii) requires a decision to be made within a

“reasonable period of time,” and applies both to applications

“to place” wireless facilities as well as requests to “construct,

or modify” such facilities. 47 U.S.C. § 332(c)(7)(B)(ii). 

Together, these enumerations of the categories of applications

can reasonably be interpreted to authorize the application of
CITY OF PORTLAND V. UNITED STATES 55

shot clocks to building and construction permits, as well as

zoning permits.

The FCC also provided sound reasons for this expansion. 

It explained that limiting shot clocks to zoning permits could

lead states and localities to “delay their consideration of other

permits (e.g., building, electric, road closure or other permits)

to thwart the proposed deployment.” Small Cell Order ¶ 134

n.390. Courts interpreting Section 332 have reached a similar

conclusion for the same reason. See, e.g., Ogden Fire Co.

No. 1 v. Upper Chichester Twp., 504 F.3d 370, 395–96 (3d

Cir. 2007) (rejecting the argument that the Act only applies

to zoning permits, because the city could use other permits to

delay construction of telecommunications infrastructure). 

The FCC acted well within its authority, and in accordance

with the purpose of the Act, when it broadened the

application of the shot clocks to encompass all permits, in

order to prevent unreasonable delays.

For their part, Wireless Service Provider Petitioners

contend that the FCC did not go far enough in modifying the

shot clock requirements. Petitioners contend that the FCC

should have adopted a deemed granted remedy for shot clock

violations, and argue that the Small Cell Order’s factual

findings compel the adoption of such a remedy.

This argument relies on a mischaracterization of the

FCC’s factual findings. It is true that the FCC found that

delays under the old shot clock regime were so serious they

would “virtually bar providers from deploying wireless

facilities.” Small Cell Order ¶ 126. But the FCC concluded

that under its new shot clock rules, which shorten the time

frames and expand the applicability of the rules, there will be

no similar bar to wireless deployment. Id. ¶ 129. Because
56 CITY OF PORTLAND V. UNITED STATES

the FCC reasonably explained it has taken measures to reduce

delays that would otherwise have occurred under its old

regime, the factual findings here do not compel the adoption

of a deemed granted remedy.

Wireless Service Providers next argue that the failure to

adopt a deemed granted remedy is arbitrary and capricious

because the FCC adopted the remedy in a different statutory

context, the Spectrum Act, see 47 U.S.C. §§ 1451–57, and

never explained why it did not do so here. It is

understandable that the FCC gave no explanation of the

difference because no comments raised any such disparity

during the regulatory process. See Perez v. Mortg. Bankers

Ass’n, 575 U.S. 92, 96 (2015) (explaining that an agency has

an obligation to respond to significant comments received). 

There are critical differences between the language of the

Telecommunications Act and the language of the Spectrum

Act. The Telecommunications Act requires cities make a

decision on applications within a reasonable period of time. 

See 47 U.S.C. § 332(c)(7)(B)(ii) (“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 . . . .” (emphasis added)). The Spectrum Act provides

that the local government must grant all qualifying

applications. 47 U.S.C. § 1455(a)(1) (“[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 . . . .” (emphasis added)). The deemed

granted remedy in the FCC’s Spectrum Act order was in

accordance with the text of the statute. There is no similar

language in the Telecommunications Act. The FCC’s

conclusion that a different remedy was appropriate here was

therefore not arbitrary and capricious.
CITY OF PORTLAND V. UNITED STATES 57

4. Regulation of Property in the Public Rights of

Way

Local governments generally exercise control over public

rights-of-way for purposes of determining where installations

such as utility poles and traffic lights should be placed. Some

of these installations are owned by the municipalities

themselves and some are owned by other entities, such as

public and private utilities. Local Government and Public

Power Petitioners (American Public Power Association et al.)

argue that under Supreme Court authority, the preemption

provision of Section 253(a) cannot apply to the municipal

regulation of access to municipally-owned installations.

The Supreme Court has considered whether a provision

of the National Labor Relations Act that preempts local

regulation of labor relations prevented a municipality that

was running a construction project from enforcing an

otherwise valid collective bargaining agreement. Bldg. &

Constr. Trades Council of Metro. Dist. v. Associated Builders

& Contractors of Mass./R.I. Inc., 507 U.S. 218, 231–32

(1993). The Court explained that when a municipality is

acting like a private business, and not acting as a regulator or

policymaker, there can be no preemption by the NLRA

because the municipality was not engaged in regulation of

labor relations. Id. It was acting as a property owner.

Local Government Petitioners and Public Power

Petitioners here contend that the municipalities are acting like

private property owners in controlling access to, and

construction of, facilities in public rights-of-way and that the

Act’s preemption provision therefore does not apply. They

thus contend the FCC lacks authority to regulate the fees they

charge for access to the rights-of-way and to the property on
58 CITY OF PORTLAND V. UNITED STATES

the rights-of-way. They emphasize that the provisions of the

Small Cell Order are intended to preempt not only regulation

of installations owned by non-municipal entities but also

regulation of installations owned by the municipalities

themselves.

The issue thus becomes whether the FCC reasonably

concluded that local jurisdictions are acting like private

property owners when the jurisdictions charge fees or

otherwise control the access to public rights-of-way. The

FCC’s regulations in the Small Cell Order were premised on

the agency’s determination that municipalities, in controlling

access to rights-of-way, are not acting as owners of the

property; their actions are regulatory, not propriety, and

therefore subject to preemption. Small Cell Order ¶ 96. This

is a reasonable conclusion based on the record. The rights-ofway, and manner in which the municipalities exercise control

over them, serve a public purpose, and they are regulated in

the public interest, not in the financial interests of the cities. 

As the FCC explained, the cities act in a regulatory capacity

when they restrict access to the public rights-of-way because

they are acting to fulfill regulatory objectives, such as

maintaining aesthetic standards. Id.

This conclusion is supported by case law in this Circuit,

where we have held that cities operate in a regulatory

capacity when they manage access to public rights-of-way

and public property thereon. See Olympic Pipe Line Co. v.

City of Seattle, 437 F.3d 872, 881 (9th Cir. 2006). For

example, in Olympic Pipe Line, we concluded that the City of

Seattle operated in a regulatory capacity when it made certain

demands of an oil pipeline that operated under city-owned

streets in the public rights-of-way. Id.; see also Shell Oil Co.

v. City of Santa Monica, 830 F.2d 1052, 1057–58 (9th Cir.
CITY OF PORTLAND V. UNITED STATES 59

1987) (holding that the City of Santa Monica does not act as

a market participant when it sets franchise fees for pipelines

that run under its streets).

The FCC’s conclusions here about the Order’s scope are

reasonably explained, and do not violate any presumption

against preemption of proprietary municipal conduct. 

Municipalities do not regulate rights-of-way in a proprietary

capacity.

5. Section 224

The FCC adopted the Small Cell Order to remove barriers

that would prevent 5G providers from accessing existing

facilities for installation of small cells. These existing

facilities often include utility poles. Public Power Petitioners,

representing the interests of public power utilities, contend

the Order cannot affect poles owned by public utilities,

because Section 224 of the Telecommunications Act, relating

to regulation of utility pole attachment rates, contains an

express exclusion for government-owned utilities. See

47 U.S.C. § 224(a)(1).

The Small Cell Order is not a regulation of rates pursuant

to Section 224, however. It is promulgated under the

authority of Section 253 to ensure that state and local statutes

do not have a prohibitory effect on telecommunications

services. See 47 U.S.C. § 253(a); The FCC responded

appropriately when it said, “[n]othing in Section 253 suggests

such a limited reading, nor does Section 224 indicate that

other provisions of the Act do not apply. We conclude that

our interpretation of effective prohibition extends to fees for

all government-owned property in the [right-of-way],

including utility poles.” See Small Cell Order ¶ 92 n.253. 
60 CITY OF PORTLAND V. UNITED STATES

Because Section 253 does not exempt public power utilities

from its terms, the FCC reasonably relied on Section 253 to

regulate such utilities.

6. Radiofrequency Exposure

More than twenty years ago, the FCC first adopted

“radiofrequency standards,” (RF standards) which limit the

amount of radiation that can be emitted from wireless

transmitters. Guidelines for Evaluating the Envtl. Effects of

Radiofrequency Radiation, 11 FCC Rcd. 15,123 (1996). The

FCC is obligated to evaluate the potential impacts of human

exposure to radiofrequency emissions under the National

Environmental Policy Act. See Pub. L. 104-104, 110 Stat. 56

(1996); 47 C.F.R. § 1.1310. In the Telecommunications

Act, Congress preempted all municipal regulation of

radiofrequency emissions to the extent that such facilities

comply with federal emissions standards. 47 U.S.C.

§ 332(c)(7)(B)(iv).

In 2013, the FCC opened a “Notice of Inquiry,”

requesting comments on whether it should reassess its RF

standards. See Reassessment of Fed. Commc’ncs Comm’n

Radiofrequency Exposure Limits and Policies, 28 FCC Rcd.

3498 (2013). The agency did not take immediate action on

that docket. During the later process leading up to the

adoption of the Small Cell Order, Petitioner Montgomery

County requested that the Commission complete its 2013 RF

proceeding before adopting the Small Cell Order, and that it

examine the potential effects of 5G technology on its RF

standards. The FCC did not address its RF standards or close

the 2013 docket before adopting the Small Cell Order.
CITY OF PORTLAND V. UNITED STATES 61

Petitioner Montgomery County now challenges the FCC’s

Small Cell Order as unlawful because the FCC did not

complete the 2013 docket review before adopting the Small

Cell Order. After its petition was filed, however, the FCC

adopted a new order examining radiofrequency exposure in

the 5G environment, and concluded that it did not warrant

changes to its 1996 standards. Challenges to the FCC’s

failure to perform updated radiofrequency analysis, as

contemplated by the 2013 docket, are therefore moot. See,

e.g., Alliance for the Wild Rockies v. U.S. Dep’t of Agr.,

772 F.3d 592, 601 (9th Cir. 2014).

There is no merit to Montgomery County’s further

suggestion that we should penalize the FCC for what the

County calls evasive litigation tactics in not acting earlier. 

The Supreme Court has emphasized that agencies have

“significant latitude as to the manner, timing, content, and

coordination of [their] regulations.” Massachusetts v. EPA,

549 U.S. 497, 533 (2007); see also Mobil Oil Expl. &

Producing Se. Inc. v. United Distrib. Cos., 498 U.S. 211,

230–31 (1991) (“An agency enjoys broad discretion in

determining how best to handle related, yet discrete, issues in

terms of procedures and priorities. . . . [A]n agency need not

solve every problem before it in the same proceeding.”

(citations omitted)). More important, Montgomery County

now has what it wanted; the FCC has examined the effects of

5G technology on its RF standards, and closed the 2013

docket. Any challenges to the adequacy of that final agency

action must now be brought in a new proceeding.

B. Challenges to the Moratoria Order

The FCC adopted the Moratoria Order in response to

complaints from a “broad array of large and small . . .
62 CITY OF PORTLAND V. UNITED STATES

wireless providers” that state and local ordinances and

practices were either explicitly or having the effect of barring

small cell deployment. Moratoria Order ¶ 143. In the Order,

the FCC concluded that ordinances and practices were

materially inhibiting small cell deployment, and the agency

provided general standards to differentiate between

permissible municipal regulations and impermissible

“moratoria.” The Moratoria Order describes two general

categories of moratoria: express and de facto. See id. ¶ 144. 

It defined express moratoria as “statutes, regulations, or other

written legal requirements” in which state or local

governments “expressly . . . prevent or suspend the

acceptance, processing, or approval of applications or permits

necessary for deploying telecommunications services.” Id.

¶ 145. The Order provided such bars to 5G deployment

qualify as moratoria even though they are of a limited

duration. Id.

The FCC then defined de facto moratoria as “state or local

actions that are not express moratoria, but that effectively halt

or suspend the acceptance, processing, or approval of

applications or permits for telecommunications services or

facilities in a manner akin to an express moratorium.” Id.

¶ 149. De facto moratoria violate Section 253 only when they

unreasonably or indefinitely delay deployment. Id. ¶ 150.

The Order provides a new definition of Section 253(b)’s

exemption for local regulations that protect “the public safety

and welfare.” The Order permits what it describes as

“emergency” bans on the construction of 5G facilities to

protect public safety and welfare, but only where those laws

are (1) “competitively neutral”, (2) necessary to address the

emergency, disaster, or related public needs, and (3) target
CITY OF PORTLAND V. UNITED STATES 63

only those geographic areas affected by the disaster or

emergency. Id. ¶ 157.

The City of Portland, not joined by the other Local

Government Petitioners, challenges the Order with a handful

of criticisms. The City’s primary contention is that the

Order’s definitions of moratoria are overly broad, and

therefore unreasonable, because, in the City’s view, the

Moratoria Order preempts even benign seasonal restrictions

on construction, such as freeze-and-frost laws. The City also

contends that the Moratoria Order is an invalid application of

Section 253, and self-contradictory in its definitions. None

of these contentions have merit.

As an initial matter, we do not read the Moratoria Order

as broadly as the City does in arguing that it would preempt

all restrictions on construction, even seasonal ones that cause

some delay in small cell deployment. The FCC carefully

explained in the Order that municipal ordinances of general

applicability will qualify as de facto moratoria only where

the delay caused by the ordinances “continues for an

unreasonably long or indefinite amount of time such that

providers are discouraged from filing applications.” Id.

¶ 150. Municipal regulations on construction are therefore

not preempted if they “simply entail some delay in

deployment.” Id. The explanation is supported by the FCC’s

assurance in the Order that municipalities retain authority

over “construction schedul[ing].” Id. ¶ 160. The City’s

concerns about the breadth of the Moratoria Order are

therefore unfounded. The Order does not preempt necessary

and customary restrictions on construction.

The City argues that the Moratoria Order preempts laws

of general applicability, while Section 253 preempts only
64 CITY OF PORTLAND V. UNITED STATES

those that specifically target the provision of

telecommunications services. By its terms, however, Section

253(a) is not so limited. It looks to both the language and

impact of local regulations. It preempts all “local statute[s]

or regulation[s], or other . . . legal requirement[s]” that

prohibit or have the effect of prohibiting telecommunications

services. 47 U.S.C. § 253(a).

Nor is the Moratoria Order contradictory in its definitions

of express and de facto prohibitions. After examining the

factual record, the FCC found that some localities had

repeatedly re-authorized temporary bans on 5G installation to

prohibit the installation of 5G cells indefinitely. Moratoria

Order ¶ 148 n.546. The FCC therefore clarified that such

explicit bans on 5G deployment qualify as express moratoria,

even if they have a “limited, defined duration.” Id. ¶ 148. In

a separate paragraph dealing with de facto prohibitions

resulting from more general laws, the FCC explained that

generally applicable laws, i.e. those that do not facially target

small cells, are not preempted unless they cause a delay that

“continues for an unreasonably long or indefinite amount of

time.” Id. ¶ 150. There is nothing inconsistent or

unexplained in the FCC’s separate definitions of express and

de facto moratoria.

Finally, the City challenges the FCC’s purportedly narrow

construction of Section 253(b)’s preemption exception for

laws regulating safety and welfare. The FCC reasonably

interpreted the phrase “public safety and welfare” in this

context to permit emergency bans on 5G deployment where

the regulations are competitively neutral and intended to

remedy an ongoing public safety concern. The FCC

explained such an interpretation was necessary to prevent the

pretextual use of safety “as a guise for” preventing
CITY OF PORTLAND V. UNITED STATES 65

deployment. Id. ¶ 157. The Order is consistent with the

FCC’s earlier interpretations of Section 253(b). See, e.g.,

New Eng. Pub. Commc’ns Council Petition for Preemption,

11 FCC Rcd. 19,713 (1996) (rejecting a broad interpretation

of Section 253(b)).

The Moratoria Order is not arbitrary, capricious, or

contrary to law on a facial basis. As the FCC has recognized,

objections to specific applications of the Moratoria Order

may be made on a case-by-case basis.

C. Constitutional Challenges to Both Orders

Local Government Petitioners also argue that the Small

Cell and Moratoria Orders violate the Fifth and Tenth

Amendments. First, Petitioners argue that the Small Cell

Order is a physical taking in violation of the Fifth

Amendment because it requires municipalities to grant

providers access to municipal property, including rights-ofway, thereby creating a physical taking without just

compensation. Petitioners compare the Small Cell Order to

the New York state law at issue in Loretto v. Teleprompter

Manhattan CATV Corp., 458 U.S. 419, 421 (1982), which

required landlords to permit cable television companies to

install cables on their property. In Loretto, the Court held the

law to be a physical taking because the installation resulted in

“permanent occupations of land.” Id. at 430. Here, on the

other hand, the Small Cell Order precludes state and local

governments from charging unreasonable fees when granting

applications, and it continues to allow municipalities to deny

access to property for a number of reasons. See Small Cell

Order ¶ 73 n.217. It does not compel access to property in a

manner akin to Loretto. See id. Once again, challenges to
66 CITY OF PORTLAND V. UNITED STATES

particular applications of the Small Cell Order must be made

on an as-applied basis.

Petitioners also argue that the Small Cell Order

constitutes a regulatory taking by limiting cost recovery. The

Supreme Court rejected a similar argument in FCC v. Florida

Power Corp., 480 U.S. 245 (1987), holding that limiting cost

recovery to actual costs did not result in a regulatory taking. 

Id. at 254. Because the Small Cell Order allows for the

recovery of actual costs as well, the Order does not constitute

a regulatory taking. See Small Cell Order ¶ 50 (explaining

that the Small Cell Order continues to allow for fees that “are

a reasonable approximation of the state or local government’s

costs”).

Finally, Local Government Petitioners argue that, by

requiring municipalities to respond to applications for use

from 5G and broadband installers within a prescribed period

of time or risk immediate control of its property, the Small

Cell and Moratoria Orders compel Petitioners to enforce

federal law in violation of the Tenth Amendment. In support,

they cite National Federation of Independent Businesses v.

Sebelius, 567 U.S. 519, 579–80 (2012) (plurality opinion),

where the Court held that financial inducement had the effect

of compelling states to enforce a federal program. Nothing

like that is happening here. Instead, the FCC is interpreting

and enforcing the 1996 Telecommunications Act, adopted by

Congress pursuant to its delegated authority under the

Commerce Clause, to ensure that municipalities are not

charging small cell providers unreasonable fees. “If a power

is delegated to Congress in the Constitution, the Tenth

Amendment expressly disclaims any reservation of that

power to the States.” New York v. United States, 505 U.S.

144, 156 (1992). In addition, by preempting certain State
CITY OF PORTLAND V. UNITED STATES 67

and local policies, the FCC did not commandeer State and

local officials in violation of the Tenth Amendment. 

Although their “language might appear to operate directly

on the States,” the Orders—as applications of the

Telecommunications Act—simply “confer[] on private

entities . . . a federal right to engage in certain conduct subject

only to certain (federal) constraints.” See Murphy v. Nat’l

Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1480 (2018)

(citing Morales v. Trans World Airlines, Inc., 504 U.S. 374,

378 (1992)). The Orders do not violate the Constitution.

IV. ONE-TOUCH MAKE-READY ORDER

In adopting the One-Touch Make-Ready Order, the FCC

intended to make it faster and cheaper for broadband

providers to attach to already-existing utility poles. See

Accelerating Wireline Broadband Deployment by Removing

Barriers to Infrastructure Inv., 33 FCC Rcd. 7705, ¶ 1 (2018)

[hereinafter One-Touch Make-Ready Order]. Previously,

only the pole owners could perform the preparatory work

necessary for attachment. The main purpose of the Order is

to create a new process, called one-touch make-ready, that

allows new attachers themselves to do all the preparations. 

Id. ¶ 2.

Petitioners American Electric Power Service Corporation

et al., a group of private utility companies, do not challenge

the most important aspects of the One-Touch Make-Ready

Order. Instead, they challenge four secondary aspects of the

Order: rules for overlashing, preexisting violations, self-help,

and rate reform. For the following reasons, we uphold them

all.
68 CITY OF PORTLAND V. UNITED STATES

A. Overlashing

Overlashing is the process by which attachers affix

additional cables or other wires to ones already attached to a

pole. The overlashing rule prohibits a utility from requiring

overlashers to conduct pre-overlashing engineering studies or

to pay the utility’s cost of conducting such studies. Id. ¶ 119

n.444.

Petitioner utility companies first contend the overlashing

rule contradicts the text of Section 224(f)(2), because the rule

does not expressly say that a utility can exercise its statutory

authority to deny access to poles for safety, capacity,

reliability, or engineering reasons. See 47 U.S.C. § 224(f)(2). 

But the overlashing rule does not prevent utilities from

exercising their statutory rights, nor has the FCC interpreted

the overlashing rule to do so. It is speculative to suggest that

it might do so in the future. See Texas v. United States,

523 U.S. 296, 300 (1998) (declining to consider claim

because “it rests upon contingent future events that may not

occur as anticipated, or indeed may not occur at all.” (internal

quotation marks omitted)). The rule allows overlashers and

utilities to negotiate the details of the overlashing

arrangement, and is thus consistent with FCC’s longstanding

policy. See Amendment of Comm’n’s Rules & Policies

Governing Pole Attachments, 16 FCC Rcd. 12,103, ¶ 74

(2001).

Petitioners also argue that the overlashing rule

undermines a utility’s Section 224(f)(2) authority to deny

pole access, because it prevents utilities from requiring

overlashers to provide certain information. We conclude that

the overlashing rule does not impede a utility’s exercise of its

statutory authority to deny access to poles. The rule
CITY OF PORTLAND V. UNITED STATES 69

authorizes utilities to require that overlashers give fifteen

days’ notice to utilities prior to overlashing so that safety

concerns can be addressed. One-Touch Make-Ready Order

¶¶ 115–16. The record shows that such notice provisions

were frequently negotiated in the past on a voluntary basis

and supports the FCC’s conclusion that such “an advance

notice requirement has been sufficient to address safety and

reliability concerns.” Id. ¶ 117. Indeed, in evaluating similar

rules, the D.C. Circuit has already held that there is “no

merit” to the claim that utilities cannot effectively exercise

their rights under Section 224(f)(2) without “prior notice” of

overlashing. See S. Co. Servs., Inc. v. FCC, 313 F.3d 574,

582 (D.C. Cir. 2002).

Finally, Petitioners argue that by prohibiting the utilities

from charging overlashers for the cost of conducting preoverlashing studies, the overlashing rule contradicts Section

224(d)(1). That section ensures cost recovery, but it does so

only for attachments by cable television providers. See

47 U.S.C. § 224(d)(1)–(3). It does not apply here. The

overlashing rule is thus a reasonable attempt by the FCC to

prevent unnecessary costs for attachers.

B. Preexisting Violation Rule

The preexisting violation rule prohibits utilities from

denying access to a new attacher solely because of a

preexisting safety violation that the attacher did not cause. 

One-Touch Make-Ready Order ¶ 122. Petitioners contend

that this is contrary to Section 224(f)(2), which allows

utilities to deny access for “reasons of safety.” There is no

conflict.
70 CITY OF PORTLAND V. UNITED STATES

The rule defines the term “reasons of safety” as

preventing a utility from denying access to a new attacher

because of a safety hazard created by a third party. Id. ¶ 122. 

Such denials have the effect of forcing an innocent would-be

attacher to fix the violation. This rule prevents the utilities

from passing the costs off on entities that did not cause the

safety problem in the first place. The FCC confirmed at oral

argument that the preexisting violation rule would not prevent

utilities from rejecting proposed attachments that increase

safety risks on a utility pole. The rule thus operates to prevent

utilities from relying on preexisting violations pretextually to

deny pole access to attachments that pose no greater safety

risk than existing attachments. Because the preexisting

violation rule reasonably defines the term “reasons of safety,”

the FCC’s interpretation is reasonable.

C. Self-Help Rule

Prior to the One-Touch Make-Ready Order, attachers

could hire contractors to perform preparatory work only on

the lower portion of a pole. The self-help rule lets the utilityapproved contractors prepare the entire pole for attachment. 

Id. ¶¶ 97–99. Petitioners argue that this expansion is contrary

to Section 224(f)(2) because permitting attachers to hire

contractors to work on the upper portion of poles jeopardizes

safety. Yet, the rule has a number of provisions designed to

mitigate any increased safety risks. For example, the rule

gives a utility a ninety-day window to complete the preattachment work itself (thereby circumventing the rule’s

contractor provisions entirely). Id. ¶ 99. The rule also

requires new attachers to use a utility-approved contractor to

perform the self-help work, and it requires the attacher to give

the utility advanced notice of when the self-help work will
CITY OF PORTLAND V. UNITED STATES 71

occur so that the utility can be present if it wishes. Id.

¶¶ 99–106.

The rule represents a change from earlier rules on what

self-help measures an attacher could perform, and the FCC

explained that use of approved contractors would improve

efficiency. Id. ¶ 97. A complaint process in the old self-help

rule allowed new attachers to file complaints when a utility

was not preparing the pole in a timely fashion. This did not

encourage efficiency. It was an “insufficient tool for

encouraging [a utility’s] compliance with [the FCC’s]

deadlines.” Id. ¶ 98. The FCC reasonably views the

deployment of new 5G technology to be a matter of “national

importance,” justifying extension of the self-help rule to

promote timely installations. Id. ¶ 97. The self-help rule is

thus not arbitrary or capricious.

Petitioners also argue that the FCC lacks authority to

regulate utility-owned pole attachments, since Section 224

defines “pole attachments” to include attachments to a utilityowned or -controlled pole. But the FCC has authority to

promulgate “regulations to carry out the provisions of”

Section 224, 47 U.S.C. § 224(b)(2), which includes

regulations addressing “nondiscriminatory access” to utility

poles, id. § 224(f)(1). It was reasonable for the FCC to

conclude that it could not ensure nondiscriminatory access to

poles without allowing make-ready work that would

reposition utility attachments; otherwise, utilities could

simply deny access to attachers based on pretextual reasons

of insufficient capacity. See S. Co. v. FCC, 293 F.3d 1338,

1348 (11th Cir. 2002) (“[T]he FCC must have some way of

assessing whether these needs are bona fide; otherwise, a

utility could arbitrarily reserve space on a pole . . . and
72 CITY OF PORTLAND V. UNITED STATES

proceed to deny attachers space on the basis of ‘insufficient

capacity.’”). Petitioners’ statutory challenge thus fails.

Petitioners mount a procedural challenge to the rule,

arguing that the FCC did not comply with the APA’s notice

requirement, 5 U.S.C. § 553, because it had not issued a

proposed rule before announcing the final self-help rule. In

raising the issue in a single footnote, petitioners have waived

any challenge to the APA’s notice requirement. See Idaho

Conservation League v. Bonneville Power Admin., 826 F.3d

1173, 1178 (9th Cir. 2016). In any event, the FCC’s Notice

of Proposed Rulemaking (NPRM) sought proposals to speed

up access to poles by allowing new attachers to prepare poles

for attachment, and several commenters proposed expanding

an attacher’s ability to perform preparatory work on the entire

pole. We conclude that, at the very least, the self-help rule is

a logical outgrowth of the NPRM. See Rybachek v. EPA,

904 F.2d 1276, 1288 (9th Cir. 1990) (explaining that an

agency need not provide a new NPRM as long as the final

published rule is “a logical outgrowth of the notice and

comments received”). There is no reason to force the agency

to begin the self-help rulemaking process anew.

D. Rate-Reform Rule

The rate reform rule continues regulatory efforts to

remove rate disparities between telecommunications carriers

who historically owned utility poles (so-called incumbent

local exchange carriers, or ILECs) and telecommunications

carriers who do not own utility poles (so-called competitive

local exchange carriers, or CLECs). See Am. Elec. Power

Serv. Corp. v. FCC, 708 F.3d 183, 185–86 (D.C. Cir. 2013). 

This rule establishes a presumption that all

telecommunication carriers are similarly situated and thus
CITY OF PORTLAND V. UNITED STATES 73

entitled to the same rates. One-Touch Make-Ready Order

¶ 123. But if a utility successfully rebuts the presumption by

showing that an ILEC continues to retain “net benefits” that

other telecommunications providers do not enjoy, then the

rate reform rule imposes a maximum rate that ILECs and

utilities may negotiate. See id. ¶¶ 128–29.

Section 224(e)(1) authorizes the FCC to prescribe rates

for pole attachments used by CLECs, but not ILECs. See

47 U.S.C. § 224(e)(1); see also id. § 224(a)(5). Petitioners

therefore argue that the FCC lacks the authority to prescribe

the same rates for ILECs. Section 224(b)(1), however,

requires the FCC to set just and reasonable rates for all

telecommunications carriers, and the FCC interpreted that to

include ILECs as well as CLECs. See id. § 224(b)(1). The

FCC has interpreted Section 224(b)(1) this way since 2011,

and the D.C. Circuit upheld this interpretation some years

ago. See Am. Elec. Power Serv. Corp., 708 F.3d at 188. And

the Supreme Court has made clear that Section 224(e)(1)

“work[s] no limitation” on the FCC’s more general

ratemaking authority under Section 224(b)(1), which is the

statutory provision that the agency invoked here. See Nat’l

Cable & Telecomm. Ass’n, Inc. v. Gulf Power Co., 534 U.S.

327, 335–36 (2002).

This rule does, for the first time, set the same presumptive

rates for ILECs and CLECs, and the FCC explained why its

record supported such a rule. See One-Touch Make-Ready

Order ¶ 126. A study by US Telecom showed that earlier

efforts to decrease rate disparities between ILECs and CLECs

had not been successful, and that historic differences between

ILECs and CLECs that supported different rates in the past

are now disappearing. See id. ¶¶ 124–26. The FCC provided
74 CITY OF PORTLAND V. UNITED STATES

an adequate justification for setting the same presumptive

rates for all telecommunications providers.

Finally, Petitioners argue that the rate reform rule may

result in their incomplete recovery of costs, because if a

utility successfully rebuts the presumption that an ILEC

should have the same rates as CLECs, the rule imposes a

maximum rate ILECs and utilities may negotiate. See id.

¶ 129. The maximum negotiable rate is not arbitrary or

capricious, however, because FCC set the rate at a value that

is higher than both CLEC and cable operator rates, and the

FCC had previously determined those rates were just,

reasonable, and allowed full cost recovery. Id. ¶ 129 n.483;

see also Implementation of Section 224 of the Act, 26 FCC

Rcd. 5240, ¶ 183 (2011).

The rate reform rule, like the overlashing, preexisting

violations, and self-help rules, is an appropriate exercise

of the FCC’s regulatory authority under the

Telecommunications Act.

V. CONCLUSION

We therefore hold that the FCC’s requirement in the

Small Cell Order that aesthetic regulations be “no more

burdensome” than regulations applied to other infrastructure

deployment is contrary to the controlling statutory provision. 

See 47 U.S.C. § 332(c)(7)(B)(i)(II). We also hold that the

FCC’s requirement that all local aesthetic regulations be

“objective” is not adequately explained and is therefore

arbitrary and capricious. We therefore GRANT the petitions

as to those requirements, VACATE those portions of the rule

and REMAND them to the FCC. The petition of

Montgomery County is DISMISSED as moot. As to all
CITY OF PORTLAND V. UNITED STATES 75

other challenges, the petitions are DENIED. Each party to

bear its own costs.

BRESS, Circuit Judge, dissenting in part:

The majority opinion carefully addresses an array of legal

challenges to a series of FCC Orders designed to accelerate

the deployment of 5G service. I join the court’s fine opinion

except as to Part III.A.1, which upholds the FCC’s decision

to preempt any fees charged to wireless or

telecommunications providers that exceed a locality’s costs

for hosting communications equipment. In my view, the FCC

on this record has not adequately explained how all abovecost fees amount to an “effective prohibition” on

telecommunications or wireless service under 47 U.S.C.

§§ 253(a) and 332(c)(7)(B)(i)(II).

The Telecommunications Act of 1996 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.” 47 U.S.C.

§ 253(a). The Act contains a similar provision for wireless

service. See id. § 332(c)(7)(B)(i)(II) (“The regulation of the

placement, construction, and modification of personal

wireless service facilities by any State or local government or

instrumentality thereof . . . shall not prohibit or have the

effect of prohibiting the provision of personal wireless

services.”).

The Act does not define what it means for a local policy

to “have the effect of prohibiting” service. Since 1997,
76 CITY OF PORTLAND V. UNITED STATES

however, the FCC has interpreted the phrase to preempt local

policies that “materially inhibit” the ability of providers “to

compete in a fair and balanced legal and regulatory

environment.” See Small Cell Order ¶ 35 (quoting Cal.

Payphone Ass’n, 12 FCC Rcd. 14191, 14206 (1997)). This

standard does not require a “complete or insurmountable”

barrier to service. Id. But it does require that a local rule

materially inhibit the ability to provide service based upon the

“actual effects” of a state or local ordinance,” “not [ ] what

effects the ordinance might possibly allow.” Sprint

Telephony PCS, L.P. v. Cty. of San Diego, 543 F.3d 571, 578

(9th Cir. 2008) (en banc) (emphasis in original); see also id.

(the statute requires an “actual or effective prohibition, rather

than the mere possibility of prohibition”) (quotations

omitted).

In the Small Cell Order, the FCC concluded that state and

local fees materially inhibit telecommunications and wireless

service when they exceed a locality’s reasonable cost of

accommodating communications facilities. Small Cell Order

¶¶ 50, 53. The FCC cited evidence that certain exorbitant

fees have stopped providers from offering service in certain

locales. See, e.g., AT&T Aug. 10, 2018 Ex Parte Letter

(AT&T “has not deployed any small cell sites in Portland,

Oregon” due to the city’s $7,500 attachment fee and recurring

fee of $3,500 to $5,500). The agency also found that “even

fees that might seem small in isolation have material and

prohibitive effects on deployment particularly considered in

the aggregate.” Small Cell Order ¶ 53. This latter finding

was based on the FCC’s determination that reduced fees

generate cost-savings for providers, which enables them to

use the newfound savings to expand wireless and

telecommunications coverage. See id. ¶ 50, 55–56, 64–65 &

nn.194–95. The agency estimated aggregate cost-savings
CITY OF PORTLAND V. UNITED STATES 77

from a reduction in fees to be over $2 billion, relying on a

2018 study by Corning, Inc. Id. ¶¶ 7, 60 & n.169.

The FCC carved out a safe harbor from the Order’s broad

preemption rule for pole construction fees up to $1,000,

attachment fees up to $500 (or $100 after a provider’s first

five 5G facilities), and recurring fees up to $270. Id. ¶ 79. 

Fees may exceed the levels in the Small Cell Order’s safe

harbor only if they reasonably approximate a locality’s costs,

which include expenses “related to processing an

application,” street closures, issuing “building or construction

permits,” and access to and maintenance of public rights of

way. Id. ¶¶ 32 n.71, 50 n.131, 79.1

No one doubts that exorbitant fees can impede the

deployment of communications infrastructure. See, e.g., P.R.

Tel. Co. v. Mun. of Guayanilla, 450 F.3d 9, 17–19 (1st Cir.

2006). But fees are prohibitive because of their financial

effect on service providers, not because they happen to

exceed a state or local government’s costs. Consider a $500

fee in Small Town A that exceeds the town’s costs by 1¢, and

a $2,000 cost-based fee in Big City B. By the Small Cell

Order’s logic, the lower fee is preempted, but the higher fee

is not. It is hard to rationalize the former under the statute,

which requires an actual and material inhibition of

telecommunications or wireless service. Sprint Telephony,

543 F.3d at 578.

1

 The Small Cell Order also interpreted the phrase “fair and

reasonable compensation” in 47 U.S.C. § 253(c) to limit state and local

fees to cost-recovery. Small Cell Order ¶ 55. But the agency declined to

use this savings clause “as an independent prohibition on conduct that is

not itself prohibited by [§] 253(a).” Id. ¶ 53 n.143; see also id. ¶ 50 n.132.
78 CITY OF PORTLAND V. UNITED STATES

Perhaps for this reason, this court over a decade ago

“decline[d]” to hold “that all non-cost based fees are

automatically preempted” under the Telecommunications

Act. See Qwest Commc’ns Inc. v. City of Berkeley, 433 F.3d

1253, 1257 (9th Cir. 2006), overruled on other grounds by

Sprint Telephony, 543 F.3d at 578.2 The FCC was aware of

this precedent when it issued the Small Cell Order, but

expressly “reject[ed] the view of those courts that have

concluded that [§] 253(a) necessarily requires some

additional showing beyond the fact that a particular fee is not

cost-based.” See Small Cell Order ¶ 53 n.143 (citing Qwest,

433 F.3d at 1257).

On this record, the FCC has not adequately explained its

basis for concluding, contra our precedent, that there is an

intrinsic relationship between a fee’s approximation of costs

and its prohibitive effect on service providers. The FCC’s

reliance on individual fees it considers “excessive” tells us

that fees can work effective prohibitions. But this does not on

its own justify a blanket prohibition on all above-cost fees. 

A $7,500 fee in Portland may well prohibit service, but that

is because of the financial toll it inflicts, not because it

exceeds the city’s costs. And the FCC has not identified in

the administrative record the frequency of above-cost fees or

the amounts that localities have generally charged above cost.

2

 Qwest applied a lenient standard that more easily allowed the FCC

to show an effective prohibition, 433 F.3d at 1256, a standard our en banc

court later rejected. See Sprint Telephony, 543 F.3d at 576–78. If abovecost fees were not per se prohibitions under the less stringent Qwest

standard, it is hard to see how they would be under the stricter approach

of Sprint Telephony. I do not suggest that Qwest imposes a “legal” bar to

the FCC’s contrary determination, Maj. Op. 43, but rather that the FCC

has not adequately explained the basis for its conclusion here.
CITY OF PORTLAND V. UNITED STATES 79

The FCC has instead determined that a prohibition on all

above-cost fees is justified because all above-cost fees, in the

aggregate, effectively prohibit 5G deployment. The linchpin

of the agency’s aggregation theory is a 2018 study by

Corning, Inc., which estimates at over $2 billion the costsavings and reinvestment from reduced fees. Small Cell

Order ¶¶ 7, 60 & n.169. But the Corning Study is not about

fees above costs. And the FCC has not explained how this

study tells us about the prevalence of above-cost fees or the

burden such fees place on service providers.

Instead, the Corning Study calculated “the cost savings

from capping fees at a level in line with the median of recent

state regulations,” estimating that amount at over $2 billion. 

Because this is not a measure of fees above costs, the Corning

Study does not say whether the caps it used to measure

savings approximate costs. Indeed, the Corning Study notes

that “[t]here is still significant uncertainty around what

‘typical’ rates are.” The study further states that “attachment

and application fees” are “lesser drivers” of 5G deployment

economics, raising questions about the extent to which all

fees above costs necessarily effectively prohibit service.

At bottom, what the Corning Study conveys is that if fees

are reduced, it will produce cost savings to those who pay the

fees. Small Cell Order ¶¶ 50, 53, 55–56, 60 & n.169, 64–65

& nn.194–95. But that commonsense observation would be

true of any fee considered in the aggregate. And it would

seemingly mean that any fee in any amount could qualify as

an effective prohibition, once aggregated. The same would

be true of the aggregate effects of any form of regulation that

localities would apply outside the fee context. I am therefore

concerned that on the record as it stands, the FCC’s approach

lacks a limiting principle. At least absent some estimated
80 CITY OF PORTLAND V. UNITED STATES

quantification of above-cost fees in the aggregate (which the

Corning Study does not provide) or some further estimate tied

to the rule it adopted, the FCC’s logic would appear to justify

the preemption of any state or local rule.

The FCC’s “reinvestment” theory invites similar

concerns. It may be true that every fee imposes some cost

that, if avoided, could potentially be reinvested to expand 5G

coverage. But it does not follow that every type of fee rises

to the level of an “effective prohibition,” which is the line

Congress drew in the Telecommunications Act. See Cal.

Payphone, 12 F.C.C. Rcd. at 14209 (stating that, “standing

alone,” the fact that providers “would generate less revenue

. . . does not necessarily mean that [services] are impractical

and uneconomic”) (quotations omitted); cf. AT&T Corp. v.

Iowa Utils. Bd., 525 U.S. 366, 390 n.11 (1999) (disagreeing

“that a business can be impaired in its ability to provide

services—even impaired in that ability in an ordinary, weak

sense of impairment—when the business receives a

handsome profit but is denied an even handsomer one”). A

provider reinvestment theory, without more, would similarly

appear to justify the preemption of any local policy that

imposes costs on providers.

On this record, the FCC thus has not shown that abovecost fees effectively prohibit service in many, most, or a

plurality of cases. I therefore cannot conclude that the agency

has articulated “a rational connection between the facts found

and the choice made.” Motor Vehicle Mfgs. Ass’n v. State

Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quotations

omitted).

The FCC itself recognizes that “in theory, a sufficiently

small departure from actual and reasonable costs might not
CITY OF PORTLAND V. UNITED STATES 81

have the effect of prohibiting service,” but concludes its costbased standard is still appropriate because “the record does

not reveal an alternative, administrable approach to

evaluating fees.” Small Cell Order ¶ 65 n.199. Concerns

about administrability, though important as a policy matter,

must still be operationalized under the statute’s effective

prohibition standard. A rule prohibiting fees that exceed cost

by $1 would be equally administrable, but that does not mean

such fees are invariably effective prohibitions on service,

which is the relevant question under §§ 253(a) and 332(c)(7).

The Order’s safe harbors underscore my concerns. The

FCC concedes that its safe harbors, which are not based on

estimated costs, tolerate fee levels “in excess of costs in many

cases.” Small Cell Order ¶ 79 n.233. That makes it more

difficult to credit the agency’s finding that above-cost fees are

per se effective prohibitions on service. The safe harbor also

allows local governments to charge recurring fees of $270,

which is substantially greater than the $150 cap on recurring

fees used to calculate cost-savings in the Corning Study. 

There are also discrepancies between the FCC’s safe harbors

for application fees and the Corning Study’s caps. The FCC

does not estimate how much of the over $2 billion in costsavings from the Corning Study would be left over under its

more expansive safe harbors. Nor has the agency explained

what portion of that figure can be attributed to above-cost

fees.

I would have vacated and remanded the Small Cell

Order’s prohibition on above-cost fees. See 5 U.S.C.

§ 706(2)(A), (E). While the FCC’s objective of advancing

5G service is undoubtedly an important one, Congress set

limits on when local actions can be preempted. While a

prohibition on all above-cost fees may well be justifiable, I do
82 CITY OF PORTLAND V. UNITED STATES

not believe the FCC has sufficiently justified it on the present

record. With the exception to its references to legislative

history, I otherwise join the court’s opinion in full.