Legal precautions necessary for cities and towns concerned about public property damage by incumbent 5G providers
Wireless carriers are beginning to deploy network infrastructure upgrades to support the roll-out of 5G services.
In an effort to expedite the process and assure the US’s dominant position on 5G deployment, the FCC has released a wireless preemption order. It is set to go into effect January 14, 2019.
The order makes it clear that communities will have to bear the cost of reduced property values and any damages incurred. The carriers themselves, meanwhile, will reap the benefits of a quick rollout.
The rules effectively limit local and state government authority in regulating the deployment of 5G small cells. They also force local governments to comply with a slew of guidelines designed to streamline some of the bureaucratic processes such as permitting that could bog down deployments.
With the first wave of small cell wireless facilities now underway, opposition to the order is growing among city and local governments across the U.S. In fact, many municipalities across the country have requested that the FCC reconsider the scope of the order and are preparing to sue the Commission.
The FCC’s wireless preemption order
The FCC order preempts state and city government authority by limiting how they can regulate the installation of small cells nodes and ensuring that wireless providers have low-cost access to public rights-of-way and existing support structures such as city-owned utility poles, street lights and other “street furniture”.
The order does not take into consideration the unique scenarios in which these small cell nodes will be deployed from city to city, which local governments have argued can lead to complex and unanticipated consequences. Lack of coordination between governing authorities and wireless providers on where, how and when new wireless facilities can be installed could potentially lead to damage to historic properties or city-owned structures, unsightly installations in historic or “design” districts, reduced property values, and other complications.
In Baton Rouge, Louisiana, for example, a wireless provider installed a new pole in the middle of the public sidewalk in the downtown area, much to the chagrin of residents and business owners. City officials were surprised that the wireless provider did not consult with the local authorities on the installation.
City and local governments are now considering the best way to move forward with these installations while ensuring that publicly-owned property and public rights-of-way are protected.
Public property and small cell deployments
Construction in public rights-of-way tend to rely on assumptions that the applicant will utilize best industry practices, common sense and good will. In the case of Baton Rouge, for example, city officials may have assumed that the wireless provider would either engage with local government on the exact placement of the new pole, or would have opted to install the structure in a way that would not obstruct the entrance of local businesses that share the sidewalk.
Below are some common issues associated with pole attachments and public rights-of-way that local governing authorities should consider in managing small cell deployments.
Traffic lights & street lighting
Traffic lights and street lighting are being used to colocate wireless facilities in urban areas.
Local government authorities may want to set specific parameters for collocation on traffic lights and street lighting to ensure that the new small cell nodes are not obstructing or in other ways limiting these structures’ primary use when installing new facilities. For example, local governments can specify how much space is available on such structures to colocate wireless facilities.
Governments can also specify what type of structural analyses wireless providers will need to complete before installing new structures on light poles, and when and how these structures and the poles themselves can be replaced to protect the structure’s primary use. Cities can also develop “defensible standards”, which set parameters for the size of small cell hardware boxes and other aspects of collocation that may shorten the lifespan of the structures or create safety problems. Local governments may also want to create rules around the installation process that serve to limit disruptions to traffic and protects public safety.
Cities can also set guidelines to protect aesthetics. In design districts or historic districts, where streets are lined with decorative poles or traffic lights that exhibit specific designs, local governments may want to require wireless providers to follow design guidelines or concealment methods.
Collocation on utility poles should follow similar parameters as those established for street lights and traffic lights: local governments can protect these structures and their primary uses by establishing limits on the space available for collocation, how large the new equipment can be, what types of structural analyses wireless providers need to complete before installing new equipment on the poles, and guidelines for when and how utility poles need to be replaced for safety concerns.
For utility pole attachments, it is critically important that local governments regulate small cell wireless facility installations so that they do not interfere with the operation of the utility pole or its primary uses. Local governments can also establish rules for turning off wireless facilities when utility workers are present on poles, in order to limit their exposure to radio frequency emissions, and may require warning signs be posted to alert utility workers to radio frequency exposure.
Public rights-of-way refer to areas that are maintained by government authorities and can be used by the public, such as roadways, shoulders and medians, sidewalks, parks, pavilions and other public spaces. An important aspect of FCC wireless preemption order is that it assures wireless providers access to public rights-of-way for small cell deployments at fairly low costs. This means that city and local governments have limited authority in how they can regulate these spaces for 5G infrastructure and installation. Local governments may want to establish standards for wireless facility installations on public rights-of-way to ensure public safety during and after construction.
Governing authorities can set parameters around the types of construction that wireless providers may use when erecting new structures or collocating small node cells on existing structures in public rights-of-way or in specific areas. Authorities can outline rules for restoring infrastructure such as sidewalks, roads and parkways after construction is complete; and for requiring wireless providers to conceal their equipment from view in certain areas or under specific circumstances.
Step-By-Step Guide To Protecting Your Community’s Property
Follow these steps to ensure that your community is doing everything it can to protect its publicly-owned property from potential damages or alterations.
1. Establish standards to protect publicly-owned assets
City councils and other local governing authorities should establish standards for small cell installations that offer guidelines for collocation attachments that protect government-owned assets such as traffic lights, street lights and roadway infrastructure in order to protect the long-term durability of those assets and prioritize their primary use. Such standards can be established as city ordinances, technical standards or even as part of the agreement between the local authority and the wireless provider.
These standards should include input from government stakeholders, utility companies or cooperatives, and residents and business owners where applicable. Local governments can also include specific parameters for the size and visibility of the equipment being installed, as well as the construction and placement of structures, to prioritize the assets’ primary use, residential concerns, and aesthetic considerations.
2. Initiate “red flag” reviews
Local governments should conduct with counsel “red flag” reviews of existing local and state regulations related to public rights-of-way management, permitting and zoning, local franchising and local telecommunications ordinances to understand what parameters wireless providers can act within, and to determine if any immediate actions need to be taken to align existing laws with new regulations on small cell deployments.
3. Utilize attachment agreements
Local governing authorities can require wireless providers obtain attachment agreements in order to ensure small cell installations occur with express consent and input from local governments. While the FCC order will give wireless providers access to public rights-of-way, the order does not allow them to install small cell nodes on government-owned structures, or erect new structures in public rights-of-way, without approval from local governing authorities. Attachment agreements can help governing authorities establish rules and parameters for occupying public spaces and installing new equipment.
4. Save pole space for future uses
Utility poles, street lights and traffic lights can typically only support one wireless facility installation. By assuring wireless providers access to these structures, the FCC preemption order fails to take into consideration future public sector needs. So while local governments may want to encourage wireless providers to colocate small cell nodes on existing poles and other support structures (rather than allow them to build new structures along roads or in public rights-of-way), officials should consider reserving space on these structures for future use by government or other public sector entities for public safety deployments or, future smart city and IoT deployments. By evaluating possible future needs, local government can more effectively regulate which structures wireless providers may access for small call attachments.
5. Update aesthetic and concealment standards
While small cell nodes are indeed much smaller than the macro-cell tower infrastructure that the public is most familiar with, small cell nodes and the accompanying cabling will still present aesthetic issues. Residents and business owners may be particularly sensitive to the visual impacts of small cell nodes deployed on every block. Similarly, areas that are designated as historic, design, or art districts may be negatively impacted by the installation of unsightly small cell equipment.
The FCC preemption order states that local governments can impose aesthetic requirements as long as those requirements are not more burdensome than other infrastructure requirements, and they are “objective and published in advance” (Order, ¶ 86). Local governments should consider updating or establishing aesthetic and/or concealment standards ahead of small cell deployments. In fact, the FCC noted in its preemption order that it expects local governments to update their aesthetic requirements within 180 days of the order’s publication.
Such standards should include considerations such as the size of the antenna, the equipment box, and/or related cabling; placement of equipment on support structures (such as in the base of the pole, rather than on the outside); establishing flush-mounting requirements and spacing requirements; and aesthetic measures such as paint matching or design matching for small wireless facilities in specific areas, camouflage and other concealment methods; and for residential areas, guidelines on structure heights and lengths, and minimum setback rules from dwellings, parks, or playgrounds.
6. Provide easy-to-access resources for wireless providers
Local governments may want to make technical standards, permitting processes and other resources available to wireless providers in a simple and easy-to-find manner to increase cooperation and engagement between the two entities during small cell deployments. By offering wireless providers easy and early access to this type of information, including online access and/or organizing the resources in a single document, local governments can help ensure that the parameters are followed during the process.
7. Simplify the permitting process with detailed applications
The FCC order requires that city governments respond to small cell siting applications in a timely manner, so that the permitting process does not become a bottleneck for small cell deployments. However, the influx of permitting applications anticipated for small cell deployments could leave local authorities scrambling to keep up. The FCC wireless preemption order states that if a local government fails to respond to an application within 90 days, the application will be deemed granted — whether or not anyone has even looked at it.
In order to reduce the likelihood of a backlog of applications, local governments should build detailed permit applications that clearly identify all the information, analyses, and planning materials that wireless companies need to provide in seeking permits for small cell installations. Such applications should include precise instructions to wireless providers on files formats, measurements, map coordinates, supporting documents and other application specifics. The application should be organized so that reviewers can quickly determine whether or not the application is complete, if any information needs to be re-submitted, or if any additional information is required before the application can be reviewed for approval. Local governments should strive to make as much of the process as possible (if not the entire process) available digitally to ensure compliance.
It is also important that government officials have a realistic understanding of how much time and effort will be required to review applications for approval or denial so that officials can have an idea of what to expect when, for example, multiple applications are being reviewed at once. Officials should consider whether the authority needs to allocate or hire more personnel to review applications; how quickly mistakes or missing information from the applicant can be corrected, and how much time needs to be allotted for public comment and government response.
8. Establish cost studies and justify cost recovery
The FCC order seeks to limit how much local governments can charge wireless providers in small cell deployments for things such as application and permitting fees, fees related to accessing public rights-of-way and/or rental fees for small cell collocation on existing structures. However, the order does specify fee caps for one-time applications and annual fees (Order, ¶ 50).
The order does not state how these fees can be calculated, but only requires that the fees are reasonable given the associated costs incurred by the government body, and that the fees are not substantially higher than what the government may charge anyone else for accessing the same structures. Importantly, the order leaves room for local governments to collect larger fees from wireless providers if officials can justify higher costs incurred, but it also allows for applicants to challenge higher costs as being prohibitively excessive.
Local governments should conduct methodical and extensive cost studies for small cell deployments to both inform fee calculations and to act as a resource for defending those fees should they be challenged by wireless providers.
Cost studies should document all expenses incurred by a government entity during the application and permitting process. Such studies may include personnel costs for reviewing applications, field inspections of proposed siting prior to and upon completion of construction and installation, maintenance and repair costs of wireless facilities colocated on government-owned structures, and administrative costs such as those incurred during the public notification process, or in developing an electronic application process.
Cities must act now
The FCC preemption order will likely face legal challenges from cities and states in the coming months, and the Commission may be forced to revise the order or reduce its scope in the future. But as it stands now, the best bet for local governments to retain some say in the deployment of 5G small cells is to establish standards, rules and ordinances that define more clearly where local governing bodies have authority, and how they can exercise that authority.
The FCC order notes that state laws can prevail over the FCC order if those laws impose more demanding standards on small cell deployments, which means local governments should engage with state legislators to execute a coordinated approach to establishing regulatory parameters for small cell deployments.
In the meantime, cities are faced with the prospect of declining property values and potentially expensive damage and disruption to street furniture and other infrastructure within public rights-of-way.