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Small Wireless Facilities: Are There Any Coverage Gaps In Your Regulations?

Close up of a small cell wireless module on a utility pole against the backdrop of a city

Wireless communication is a complex and evolving topic for Washington cities and counties, and the development of small wireless facilities over the last 10 years has complicated the regulatory role.

Prior to the advent of small wireless facilities, wireless communications equipment was primarily sited on monopoles, buildings, and structures located outside of the right-of-way on either private or government-owned property. As a result, cities and counties typically regulated wireless facilities under their zoning codes.

Small wireless facilities are smaller than traditional wireless facilities and are typically mounted on utility or light poles in the right-of-way. A small wireless facility consists of radios, one or more antenna, and an equipment box, and it requires power and fiber to transmit cellular phone and data signals. The Federal Communications Commission’s (FCC) guide on Small Wireless Facilities is helpful for understanding these and other types of wireless deployments and includes images of the different types of wireless facilities.

Small wireless facilities provide additional capacity for data traffic in dense areas, so they augment existing wireless communications networks but do not replace them. The upshot is that local governments need to be sure their regulations address wireless facilities both in and outside of the right-of-way.

The FCC issued a Declaratory Ruling in 2018 that was intended to accelerate deployment of small wireless facilities and remove barriers to wireless infrastructure investment. This blog will summarize the ruling, provide thoughts on how to ensure your local regulations are comprehensive, and provide examples of local government small cell regulations.

FCC Declaratory Ruling

The 2018 FCC Declaratory Ruling covers a lot of ground. Here are some of the most important points from a local government standpoint.

Definition of small wireless facilities

The Declaratory Ruling, Appendix A, Section 1.6002(l), defines small wireless facilities based primarily on size and includes the following elements:

  • They are mounted on structures 50 feet or less in height, including their antennas;
  • Each antenna is no more than three cubic feet in volume;
  • All other associated wireless equipment is no more than 28 cubic feet in volume.

Local governments will want to check that applications for small wireless facilities meet the elements of the FCC definition of a small wireless facility.

Material inhibition standard

The federal Telecommunications Act of 1996 (47 U.S.C. Section 332(c)(7)(B)) provides that local regulations “shall not prohibit or have the effect of prohibiting provision of personal wireless services.” Those local regulations that violate this provision are preempted and therefore unenforceable.

Over time, courts reached different conclusions about the test to apply to determine if a local regulation is preempted. The Declaratory Ruling (see Part III A.35 and Part III C.82) adopts the following standard, which applies to all types of wireless facilities, including small wireless facilities:

[A] state or local legal requirement constitutes an effective prohibition if it “materially limits or inhibits the ability of any competitor or potential competitor to compete in a fair and balanced legal and regulatory environment.”

Local governments need to understand and account for the material inhibition standard because it applies more broadly than one might think based on the language in the Telecommunications Act of 1996.

A number of cities — including several from Washington State — brought a legal challenge to several provisions in the Declaratory Ruling, including the material inhibition standard. In 2020, the federal Ninth Circuit Court of Appeals upheld most aspects of the Declaratory Ruling, including adoption of the material inhibition standard (see The 9th Circuit Backs the FCC in Small Wireless Appeal for more information about the ruling).

So what does it mean to materially inhibit a small wireless facility provider? This question is one that needs to be answered on a case-by-case basis. Providers most frequently challenge procedural provisions they view as burdensome, including franchise requirements and imposition of fees beyond the costs of permit administration. However, substantive provisions, such as prohibiting wireless facilities in certain zones/uses or imposing spacing requirements, may be subject to challenge if they adversely impact a provider’s ability to install infrastructure. Ultimately, the question of whether local regulations materially inhibit the ability to provide wireless service will require a comparison of the local regulations with a provider’s proposed deployment.

Understanding shot clocks

A “shot clock” is the time a local government has to issue a decision on an application. Under the Declaratory Ruling, the shot clock that applies to local approval of construction of small wireless facilities on new structures is 90 days, and the review period for small wireless facilities on existing structures is 60 days (see Appendix A, Section 1.6003).

It is very important to note that the shot clock will start to run on the day the application is submitted, regardless of whether the local government deems it to be complete. If an application is deemed materially incomplete, the local government must notify the applicant within 10 days after submission and clearly identify the missing documents or information as well as the specific local rule or regulation creating the obligation to submit the new documents or information.

The notice that the application is incomplete tolls the shot clock. Once all the requested documents or information are submitted by the applicant, the shot clock resets and begins to run from the beginning of the applicable period. Once an application is complete, the shot clock cannot be stopped unless all parties agree to toll it. Local governments need to be aware of this rule since it differs significantly from state land use law.  

Should a Local Government Require a Franchise for Small Wireless Facilities?

In general, yes. There may be other methods for approving small wireless facilities, such as issuance of a right-of-way permit for each facility, but right-of-way use permits are generally used for self-contained, individual projects. Small wireless facilities, by definition, are part of a larger wireless network that uses the right-of-way as part of its network. Even if individual small wireless facilities are not physically connected by fiber, providers are using the right-of-way to build their wireless network — and a franchise will be useful if, over time, a provider decides it wants to install additional small wireless facilities in the right-of-way.

Sample Regulations

Local governments that have not updated their wireless regulations to address the FCCs 2018 Declaratory Ruling should do so: It is important to have regulations in compliance with the ruling (and related court case) that adequately address small wireless facilities before an application to site such a facility is submitted. Failure to do so could result in application of federal standards that may not be consistent with local interests and priorities.

MRSC’s Wireless Communications webpage has a Small Cell Technology section with several example ordinances.

MRSC is a private nonprofit organization serving local governments in Washington State. Eligible government agencies in Washington State may use our free, one-on-one Ask MRSC service to get answers to legal, policy, or financial questions.

Photo of Oskar Rey

About Oskar Rey

Oskar Rey has practiced municipal law since 1995 and served as Assistant City Attorney for the City of Kirkland from 2005 to 2016, where he worked on a wide range of municipal topics, including land use, public records, and public works. Oskar is a life-long resident of Washington and graduated from the University of Washington School of Law in 1992.