Last Week in Tech Policy #49: Preemption of Local Authority for Wireless Siting

(By Irena Stevens, PhD Candidate in the Interdisciplinary Telecom Program)

With the goal of promoting the deployment of next-generation wireless facilities, the FCC will vote on April 20th  to continue a rulemaking proposal to preempt local authority in the Right-of-Way (ROW). Wireless carriers are increasingly seeing utility poles in the ROW as an opportunity to expedite and diminish the cost of siting small cells, and say that local governments are creating unnecessary delays and charging excessive fees for pole attachments.

Examples of local regulations that the industry argues are burdensome and stifling include:

  • Requirements for stealth shrouds around equipment;
  • Prohibitions on deployment in residential zones; and
  • Limits on the size of poles in the ROW.

The changes that the industry proposes to expedite the process are:

  • A 60- to 90-day shot clock after which, if a local government has not yet approved a site application, it would be ‘deemed granted’;
  • A maximum cap on administrative pole attachment fees; and
  • A limit on the ability to deny application on aesthetic grounds unless in designated historical neighborhoods.

Similar changes have been proposed in several state legislatures including California, Florida, Virginia, and Ohio, with varying levels of passage and court action.

Local government officials respond that carriers are trying to avoid necessary safety regulations and local input practices for deployments of network infrastructure. They argue that local governments are also short-staffed and need more time to create a comprehensive policy regarding their relationship with the industry.  They note that many applications are incomplete, inaccurate, and do not represent the reality of the site once it is built. Some submissions request atypical infrastructure, including networks of 120 foot poles for wireless backhaul to connect sites and avoid installing fiber.

The discussion reveals several issues:

  • Whether wireless service is considered a utility;
  • The difference between proprietary and regulatory aspects of managing the ROW; and
  • The degree to which localities have a reasonable level of control over their environment.

Wireless carriers and their agents argue that, as a utility designation, they can site any public utility infrastructure in the ROW almost free of charge. However, despite the replacement of traditional telephone lines by cell towers, it may not be defensible to extend the regulations for traditional communications services of a certain form, look, and size to another functionally similar technology. Debate continues on whether they fall under the definition of telephone or utility companies under many state laws.

Municipalities draw a distinction between the proprietary assets they own in the ROW, such as poles and other structures, and the regulatory authority they have over the placement of other utility infrastructure. Under current legislation, preemption applies to their regulatory authority and only if the municipality has behaved in a discriminatory or otherwise unfairly prohibitive manner.

The last FCC preemption attempt, which dealt with overturning state restrictions on municipal broadband, resulted in a successful court challenge against FCC’s preemption authority as rooted in facilitating deployment of network facilities. In this case, the FCC is attempting to preempt local, not state, regulations, and it remains to be seen whether the courts find distinction in the precedent for this issue. If expediency is a justification for preemption, municipal representatives argue that 5G is still a few years away and there is no reason to rush the process of deployment without further deliberation.

Another aspect of preemption is taking away local enforcement authority to compel compliance with local policies and codes in the process of managing the public built environment.  Because local officials have the most control prior to authorizing the site and may not have the ability or personnel to monitor the site after installation, shot clocks may significantly lessen proactive oversight mechanisms. With ‘deemed granted’ shot-clock requirements, carriers have an incentive to delay and prolong the process for wireless siting until they are automatically granted permission, effectively limiting any enforcement ability on the part of the local government to require improvements.

In addition, the term ‘small cell’ is, in practice, often poorly defined. Carriers have sometimes put up a heavy mass of equipment on a pole comparable to what is usually placed on a more secure macro site (sometimes referred to as mini-macro or DAS XL) and would typically require paying more rent. Local officials also complain about bulky cabinets blocking wheelchair access, noisy cooling fans, excess cabling that may be vandalized, and unnecessary blinking lights. Cities are responsible for maintaining a safe living environment, and the heavy small refrigerator-sized equipment placed around walking corridors may create excessive pole loading or pose an unnecessary hazard in extreme weather situations. Furthermore, cities are also concerned about poorly designed facilities detracting value from previous investments in public spaces.

This issue reveals a challenge in how to balance between fostering a safe and pleasing environment and promoting the next generation of wireless infrastructure deployment to meet rising data capacity demands. Nevertheless, enabling better internet access is a priority for municipalities as well as wireless carriers because they recognize its benefits for local economic development, traffic management, energy conservation, and other ‘smart cities’ initiatives. This debate is characterized by some degree of labeling, but not all municipalities are being excessively difficult just as not all carriers are seeking to brute force their way into siting a facility. Negotiation, effective communication, and compromise may still help resolve differences between the two sides.