FCC Takes Aim (Again) at Municipal Rights to Promote Faster Local Deployment of 5G Network
New York municipalities beware. On September 4, 2018, in response to complaints from the telecommunications industry that local rules and regulations are a burden to the deployment of their facilities, the FCC announced that it will vote on September 25, 2018 on an Order that will speed deployment of new 5G network technologies across the country that will have an immediate impact on New York State municipalities. Approval of the Order appears to be a foregone conclusion. See link to the FCC website here: https://www.fcc.gov/5G. However, litigation appears likely. See link to the US Conference of Mayors reaction to the FCC’s proposed Order here: https://www.usmayors.org/2018/09/10/statement-by-u-s-conference-of-mayors-ceo-executive-director-tom-cochran-on-fccs-order-proposing-to-usurp-local-property-rights/.
While you have probably heard about 5G technology, and its speed has been described as about 100 times faster than 4G, the Federal government wants to make sure that its rollout runs as smoothly and quickly as possible, with faster approval time frames and limits on local fees that may be charged.
To facilitate their deployment goals of 5G Small Wireless Facilities, the FCC Order provides, among other thing, for new “shot clock” review deadlines and limitations on certain fees typically charged by municipalities for the use of public rights-of-way, including government-owned light poles, traffic lights, utility poles, and other similar property suitable for Small Wireless Facilities. The Order recognizes that municipalities incur a variety of direct and actual costs in connection with Small Wireless Facilities, such as the cost for staff to review the application, costs associated with the use of the right-of-way and costs associated with maintaining the right-of-way and structures within the right-of-way to which Small Wireless Facilities are attached. The Order provides several important points:
- Two new “shot clocks” - 60 days for collocation of Small Wireless Facilities on preexisting structures and 90 days for new construction of such facilities. Importantly, it is now “presumed” that a municipality to not have acted in a reasonable period of time if it fails to act on an application before the shot clock expires.
- Fees charged must be reasonably approximate to actual costs and competitively neutral. The FCC declares that presumptive permissible fees under Section 253 or Section 332(c)(7)to be:
(a) $500 for a single up-front application that includes up to five Small Wireless Facilities, with an additional $100 for each Small Wireless Facility beyond five, and
(b) $270 per Small Wireless Facility per year for all recurring fees, including any possible right-of-way access fee or fee for attachment to municipally-owned structures in the right-of-way.
In limited circumstances, a locality may charge fees that are above these levels by showing that such fees comply with the limits imposed by Section 253—specifically, that they are (1) a reasonable approximation of costs, (2) those costs themselves are reasonable, and (3) are non-discriminatory. Allowing municipalities to charge fees above these levels upon such a showing recognizes local variation in costs. It also appears that municipalities are authorized to continue to retain consultants to assist in the review of the application. However, such costs may not be “unreasonably high” or “excessive”, even though they are an actual “cost” to the government.
The definition of the Small Wireless Facilities (described as about the size of a backpack) distinguishes it from other forms of technology, such as “small cells”. A Small Wireless Facility, is a facility that meets each of the following conditions:
(1) The structure on which antenna facilities are mounted—
(i) Is 50 feet or less in height, or
(ii) Is no more than 10 percent taller than other adjacent structures, or
(iii) Is not extended to a height of more than 10 percent above its preexisting height as a result of the collocation of new antenna facilities; and
(2) Each antenna (excluding associated antenna equipment) is no more than three cubic feet in volume; and
(3) All antenna equipment associated with the facility (excluding antennas) are cumulatively no more than 28 cubic feet in volume; and
(4) The facility does not require antenna structure registration under part 17 of this chapter;
(5) The facility is not located on Tribal lands, as defined under 36 C.F.R. § 800.16(x); and
(6) The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in Rule 1.1307(b)
Because the FCC anticipates thousands of new 5G Small Wireless Facilities to be deployed within local rights-of-way across the country in the coming years, the FCC Order promotes “batching” applications. This means:
(i) If a single application seeks authorization for multiple deployments, all of which concern Small Wireless Facilities, then the presumptively reasonable period of time for the application as a whole is equal to that for a single deployment (i.e. 60 days).
(ii) If a single application seeks authorization for multiple deployments, the components of which are a mix of deployments that include Small Wireless Facilities, then the presumptively reasonable period of time for the application as a whole is 90 days.
In addition, municipalities will have to get used to “batched” applications because, per the Order, they may not refuse to accept them.
On the bright side, the Order recognizes that municipalities are authorized to continue to review such applications, including aesthetic review considerations, provided that the rules are reasonable, non-discriminatory and made public in advance. Stay tuned for a more comprehensive analysis of the FCC Order after the anticipated September 25 vote.