FCC’s Declaratory Ruling on 5G Small Cell Wireless Facilities

The Federal Communications Commission (FCC) recently issued a 2-part Declaratory Ruling with the intent to streamline the deployment of Fourth Generation (4G) and Fifth Generation (5G) mobile communication system infrastructure. Key points of the ruling are listed and briefly discussed in this post.

The ruling is scheduled to take effect on January 14, 2019, and litigation brought by governments and by service providers is underway in multiple courts on a variety of the ruling’s points. The FCC offers a 1-page Fact Sheet or the full Declaratory Ruling. Additional resources for local governments are available at the end of this post.

Features of 5G Deployments

5G deployments, also known as small cell wireless facilities (SWF), feature equipment that is smaller and more densely sited than 4G and macro wireless facilities and is primarily located in the right-of-way. 5G equipment is comprised of an antenna less than 3 cubic feet, an equipment box, and wiring, or ‘fiber.’ Antennae and equipment may be shrouded or enclosed, and in some cases an entire pole is an enclosure for 5G equipment. Small cell wireless facilities must be less than 50 feet tall. Photo examples are available in the slide deck below. 

Key Points

The 2-part Declaratory Ruling offers the following key points:

• Establishes two new “presumptively reasonable” permit review timelines (referred to as shot clocks)
• Clarifies the use of the term collocation
• Publishes safe harbor fees for the use of city-owned infrastructure
• Establishes guidelines for imposing aesthetic standards that must be
  • reasonable
  • no more burdensome than those applied to other types of infrastructure deployments
  • objective and published in advance
• Interprets the term effectively prohibit. See Sections 253 and 332(c)(7) of the Communications Act for discussion of state and/or local law as regards effective prohibition

Shot clocks

Shot clocks are the FCC's new permit review times for small wireless facilities, including:

1.  A 60-day review period for collocation of small wireless facilities
2. A 90-day review period for construction of new small wireless facilities

These are shown in the chart below, along with existing and new FCC shot clocks. 

For collocation and new construction of SWF’s, the shot clock begins to run when an application is submitted, not when it is deemed complete. However, the clock pauses if an application is considered incomplete and the applicant notified within 10 days to submit supplemental information. Once the missing information has been submitted, the shot clock resets and starts anew. It can be paused again if the resubmission does not include the information requested in the initial notice.

Mandatory pre-application requirements

Pre-application requirements and procedures do not delay or suspend the clocks. The FCC takes the position that having pre-application requirements or procedures would negate the intent of shot clocks. Shot clocks are addressed in paragraphs 141-147.

Collocation

Collocation is the attachment or installation of an antenna and associated antenna equipment to existing poles, structures, and infrastructure in the public right-of-way, whether it currently holds such equipment or not. It also includes the modification of a structure for the purposes of installing an antenna and antenna equipment. The 90-day shot clock applies.

Fees

The FCC has suggested “presumptively reasonable” safe harbor application and use fees but has not placed caps on fees. Local governments are not prevented from charging fees higher than the suggested amounts, but should a carrier choose to litigate over a government’s higher fees, the local government must demonstrate that its fees are based on a reasonable approximation of its costs and that its costs are “reasonable” and no higher than fees charged to “similarly-situated competitors in similar situations.” (Paragraph 50)

The safe harbor fees can be found in paragraph 79 and are:

• $500 for non-recurring fees, including a single up-front application that includes up to five SWF’s, with an additional $100 for each SWF beyond five
• $1,000 for non-recurring fees for a new pole (not a collocation) intended to support one or more SWF’s
• $270 per SWF per year for all recurring fees, including any possible ROW access fee or fee for attachment to municipally-owned structures in the ROW

The reasonableness of these fees is in litigation, as cities cite their current fees for similar use, which in many cases are higher than those suggested by the FCC. Cities also state that the FCC’s safe harbor fees do not cover costs. If your jurisdiction determines it should set different fee levels based on costs, keep the reasonableness test in mind, check with your attorney, and document how those fees were determined.

Aesthetic Standards

The FCC addresses aesthetics in Section C. Other State and Local Requirements that Govern Small Facilities Deployment. The discussion of aesthetics takes place in the context of “effective prohibition of service”, with paragraph 86 stating:

Given these differing perspectives and the significant impact of aesthetic requirements on the ability to deploy infrastructure and provide service, we provide guidance on whether and in what circumstances aesthetic requirements violate the Act.  This will help localities develop and implement lawful rules, enable providers to comply with these requirements, and facilitate the resolution of disputes.  We conclude that 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) published in advance. (emphasis added)

Some cities in Washington State have recently drafted and adopted codes addressing aesthetics and fees in anticipation of the FCC ruling’s effective date. Sample codes and ordinances are at the bottom of this post, along with brief descriptions. All codes are from 2018 and are provided as examples.

In the embedded slide deck, we have included some examples of codes as well as examples of what to be aware of regarding your existing ROW aesthetics and how those may be applied to establish “no more burdensome” aesthetic requirements for placement of 5G equipment on poles. When working with design standards, keep in mind the three points from the ruling: standards are reasonable, no more burdensome than those in place for similar types of deployments, and must be published in advance.

Effective Prohibition: A Term to Remember

With each of the points discussed above in this post, the overarching concept to keep in mind is that of effective prohibition. The FCC cites its own 1997 California Payphone Opinion and Order when interpreting an effective prohibition, and it is discussed in each section of the ruling that discusses fees, aesthetics, and shot clocks. According to the FCC, a jurisdiction’s actions, processes, codes, or fees, may be deemed an effective prohibition if it "materially inhibits" small wireless facility deployment. 

Paragraph 37 of the ruling states:

As explained in California Payphone and reaffirmed here, a state or local legal requirement will have the effect of prohibiting wireless telecommunications services if it materially inhibits the provision of such services.  We clarify that an effective prohibition occurs where a state or local legal requirement materially inhibits a provider’s ability to engage in any of a variety of activities related to its provision of a covered service. This test is met not only when filling a coverage gap but also when densifying a wireless network, introducing new services or otherwise improving service capabilities.

More Information and Resources

MRSC will continue to track small cell wireless deployment issues and regulations that may affect local governments. At the time of this writing, at least 20 state legislatures have passed legislation restricting local zoning authority for 5G deployment. Please send any codes, procedures, or practices that your jurisdiction has developed via email to lcrandall@mrsc.org.

General Resources

• American Planning Association’s FCC Decision on 5G Wireless Raises Flags for Local Planning 
• FCC Fact Sheet and Declaratory Ruling
• National League of Cities Small Cell Wireless Technology in Cities, which includes graphics of small and macro cell facilities, a discussion of federal and state policies regarding municipal siting processes, and city examples of aesthetic provisions; business process improvements to address the speed of broadband and small cell application processing; the use of citizen advisory committees; and six strategies for city leadership
• City and County of Denver Small Cell Infrastructure Guidelines, which includes illustrations of what the city will and won’t allow. Colorado passed state regulations
• Cities prepare for 5G small-cell wireless, amid worries about local control and tight timelines, MLT News

Litigation

• Appeals of Small Cell Order Consolidated in Tenth Circuit

Codes and Ordinances

• City of Burien Ordinance 700, adopted December 2018
• City of Mountlake Terrace Ordinance 2722, adopted April 2018
• City of Renton Ordinance 5876, adopted January 2018
• City of Bellingham Ordinance 2018-09-014, adopted in September 2018 and developed by the city, this code provides structure without being overly descriptive or prescriptive
  Federal Way Revised Code Chapter 19.256 is a new chapter, adopted in June 2018, that includes both small cell facilities and wireless communication facilities and requires a ‘concealment element plan’ as part of extensive design guidelines for new and existing structures
• The City of Spokane Valley added Chapter 22.120 to its Municipal Code in 2018. The brief and succinct code includes what must be included in application submittals and has design standards that address type of equipment and the surrounding in which it is place.