Is the Road to 5G Paved with Federal and State Pre-emptions of Local Authority?
Many in the wireless industry are aware of the FCC rulemaking proceeding proposing regulatory changes to streamline the expansion of wireless infrastructure (WT Docket 17-79). A basic premise of this proceeding is the tremendous potential of 5G wireless technology and the increased capacity needs and vast expansion of infrastructure supporting wireless networks that will be needed to deploy 5G. The proceeding focuses on and identifies potential obstacles to rapid deployment of wireless infrastructure at the local level.
For wireless carriers, small wireless cells are important because small cells support greater re-use of available spectrum and bring the wireless network closer to users and devices. Those attributes are very important to the developing Internet-of-Things (IOT).
Action by the FCC. In Nov. 2017, the FCC took one action in this docket. It excluded from required review under Section 206 of the National Historic Preservation Act (NHPA) replacement utility poles if these conditions are met:
(i) The original structure
(A) Is a pole that can hold utility, communications, or related transmission lines;
(B) Was not originally erected for the sole or primary purpose of supporting antennas that operate pursuant to a spectrum license or authorization issued by the Commission; and
(C) Is not itself a historic property.
(ii) The replacement pole—
(A) Is located no more than 10 feet away from the original pole, based on the distance between the centerpoint of the replacement pole and the centerpoint of the original pole; provided that construction of the replacement pole in place of the original pole entails no new ground disturbance (either laterally or in depth) outside previously disturbed areas, including disturbance associated with temporary support of utility, communications, or related transmission lines. For purposes of this paragraph, “ground disturbance” means any activity that moves, compacts, alters, displaces, or penetrates the ground surface of previously undisturbed soils;
(B) Has a height that does not exceed the height of the original pole by more than 5 feet or 10 percent of the height of the original pole, whichever is greater; and
(C) Has an appearance consistent with the quality and appearance of the original pole. (FCC 17-153, footnotes omitted.)
What’s a “Small Cell.” There is no succinct, agreed definition of the term “small cells.” One FCC point of guidance is in the August 2016 First Amendment to the Nationwide Programmatic Agreement (NPA) for the Collocation of Wireless Antennas between the FCC, the National Conference of State Historic Preservation Officers, and the Advisory Council on Historic Preservation.
The amendment lists requirements for exemption from review under Section 106 of the NHPA for “collocation of small wireless antennas and associated equipment on buildings and non-tower structures that are outside of historic districts and are not historic properties.” The specified limits of the “small wireless antennas and associated equipment” are:
1. Each individual antenna, excluding the associated equipment (as defined in the definition of
Antenna in Stipulation l.A.), that is part of the collocation must fit within an enclosure (or if the
antenna is exposed, within an imaginary enclosure, i.e., one that would be the correct size to
contain the equipment) that is individually no more than three cubic feet in volume, and all
antennas on the structure, including any pre-existing antennas on the structure, must in aggregate
fit within enclosures (or if the antennas are exposed, within imaginary enclosures, i.e., ones that
would be the correct size to contain the equipment) that total no more than six cubic feet in
2. All other wireless equipment associated with the structure, including preexisting enclosures and
including equipment on the ground associated with antennas on the structure, but excluding cable
runs for the connection of power and other services, may not cumulatively exceed:
1. 28 cubic feet for collocations on all non-pole structures (including but not limited to buildings
and water tanks) that can support fewer than 3 providers; or,
2. 21 cubic feet for collocations on all pole structures (including but not limited to light poles,
traffic signal poles, and utility poles) that can support fewer than 3 providers; or,
28 cubic feet for pole collocations that can support at least 3 providers;
3. 35 cubic feet for non-pole collocations that can support at least 3 providers; or,
4. 28 cubic feet for pole collocations that can support at least 3 providers;
State Legislation. In addition to the FCC proceeding, there has been a flurry of actions at the state level that are changing the regulatory landscape for small cells. There has been a major campaign underway by the wireless industry which has achieved impressive results. A list of state legislative initiatives considered in recent years includes about 20 states, many of which have enacted new legislation limiting the authority of local governments regarding small cell installations on public right-of-way.
These proposed state law changes typically limit or eliminate the authority of local governments to determine where in local right-of-way small cell equipment can be installed; limit the time for review by local governments; and limit the application and/or right-of-way leasing charges that can be imposed. For example, Virginia enacted S.B. 1282 earlier this year. It provides that localities cannot require special exceptions or special use permits for small cell facilities installed on existing structures where providers already have permission to co-locate equipment. It imposes a 10-day limit to notify carriers of an incomplete application and a 60-day limit to approve or deny applications. It limits fees to $100 each for up to five small cell facilities on an application and $50 for additional facilities. It prohibits fees for carrier use of municipal rights-of-way, except for zoning, subdivision, site plan, and comprehensive plan fees. It mandates that approval for a permit shall not be unreasonably conditioned, withheld, or delayed.
The Virginia law uses these definitions:
“Micro-wireless facility” means a small cell facility that is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in height and that has an exterior antenna, if any, not longer than 11 inches.
“Small cell facility” means a wireless facility that meets both of the following qualifications: (i) each antenna is located inside an enclosure of no more than six cubic feet in volume, or, in the case of an antenna that has exposed elements, the antenna and all of its exposed elements could fit within an imaginary enclosure of no more than six cubic feet and (ii) all other wireless equipment associated with the facility has a cumulative volume of no more than 28 cubic feet, or such higher limit as is established by the Federal Communications Commission. The following types of associated equipment are not included in the calculation of equipment volume: electric meter, concealment, telecommunications demarcation boxes, back-up power systems, grounding equipment, power transfer switches, cut-off switches, and vertical cable runs for the connection of power and other services.
State legislation along these same lines has been adopted in many other states in the last year. Of course, each state’s law varies and must be read carefully to determine its changes.
In contrast, Senate Bill 649 was passed this year by the California legislature but was ultimately vetoed by the Governor. S.B. 649 streamlined the local approval process for small cell sites and limited fees for small cells installed on municipal infrastructure to $250/year with a defined cost of living increase formula. The bill defined small cells as follows:
(3) (A) “Small cell” means a wireless telecommunications facility, as defined in paragraph (2) of subdivision (d) of Section 65850.6, or a wireless facility that uses licensed or unlicensed spectrum and that meets the following qualifications:
(i) The small cell antennas on the structure, excluding the associated equipment, total no more than six cubic feet in volume, whether an array or separate.
(ii) Any individual piece of associated equipment on pole structures does not exceed nine cubic feet.
(iii) The cumulative total of associated equipment on pole structures does not exceed 21 cubic feet.
(iv) The cumulative total of any ground-mounted equipment along with the associated equipment on any pole or nonpole structure does not exceed 35 cubic feet.
(v) The following types of associated ancillary equipment are not included in the calculation of equipment volume:
(I) Electric meters and any required pedestal.
(II) Concealment elements.
(III) Any telecommunications demarcation box.
(IV) Grounding equipment.
(V) Power transfer switch.
(VI) Cutoff switch.
(VII) Vertical cable runs for the connection of power and other services.
(VIII) Equipment concealed within an existing building or structure.
In his veto message, the Governor stated:
This bill establishes a uniform permitting process for small cell wireless equipment and fixes the rates local governments may charge for the placement of that equipment on city or county owned property, such as streetlights and traffic signal poles. There is something of real value in having a process that results in extending this innovative technology rapidly and efficiently. Nevertheless, I believe that the interest which localities have in managing rights of way requires a more balanced solution that the one achieved in this bill.
That suggests the possibility of another effort to address these issues during the next legislative session in California.
Federal Legislation. There is also proposed Federal legislation regarding the approval process for small cells. On October 19, Senators Wicker (R-MI) and Cortez Masto (D-NV) introduced S. 1988, the Streamlining Permitting to Enable Efficient Deployment of Broadband Infrastructure Act of 2017 or the “SPEED Act”.
This legislation would exempt small wireless facilities from environmental and historic reviews under the National Environmental Policy Act (NEPA) if they meet these conditions: (1) They are being deployed in public right of way and are not higher than an existing structure in the public right of way; or (2) They are serving as a replacement for an existing small cell and are substantially similar (as defined by the FCC) to the small cell being replaced. It would also exempt wireless towers from NEPA review if located in public right of way and the antenna tower or support pole is not more that the higher of 50 feet tall or 10 feet higher that any existing structure in the public right of way and does not have guy wires. The SPEED Act uses FCC size and other applicable requirements as its definition of small wireless facilities.
Prospects for enactment are not clear at this time.
This article originally ran on natlawreview.com.