What are small cell facilities, and why are they in the public rights-of-way?

I.       What are small cell facilities?

A small cell facility (sometimes referred to as a small wireless facility) is a cellular network facility capable of delivering high transmission speeds but at lower ranges. Although they are called “small,” this is in reference to their small coverage area, not their physical size. These facilities, due to their heightened transmission speeds and capacities, are critical to the wireless industry’s deployment of 5G services. However, because a small cell facility, when compared to a traditional macrocell tower, is only able to transmit data at low ranges and is not capable of transmitting through buildings and other structures, many more small cell facilities are needed to cover the same geographic area that a single, traditional macrocell tower would cover. It is estimated that each wireless provider will need at least ten times as many small cell facilities as macrocell towers to provide the same network coverage.[1]

II.     Why are small cell facilities in the public rights-of-way?

Wireless providers and wireless infrastructure providers will seek to collocate small cell facilities and construct wireless support structures in a municipality’s rights-of-ways for a number of reasons, but one of the primary reasons is that small cell facilities require two resources: (1) data via fiber optic cable and (2) power, and both of these resources are often found in a municipality’s rights-of-way.

Additionally, many states have enacted statutes that, among other things, limit rights-of-way and permit application fees that a municipality can collect from a wireless provider or wireless infrastructure provider and create statutory review periods for small cell facility permit applications.[2] Often, utility poles and wireless support structures owned by private entities are exempt from these state statutes, further prompting wireless providers and wireless infrastructure providers to prefer to collocate small cell facilities to existing municipal assets in the municipality’s rights-of-way.[3]

III.  Which types of entities are collocating small cell facilities or constructing wireless support structures?

In addition to traditional wireless providers, neutral host and other infrastructure providers are also expected to play a critical role in the deployment of small cell facilities. Neutral host and other infrastructure providers will often lease their wireless assets to traditional wireless providers. As a result, your municipality might not receive any permit requests of applications for collocating small cell facilities or constructing wireless support structures from traditional wireless providers such as AT&T, Verizon, T-Mobile, and Sprint. Instead, your municipality may be receiving permit requests and applications from neutral host providers such as ExteNet and Mobilitie.

IV. Why should my municipality be concerned?

Not all small cell facilities are created equal. While wireless providers and wireless infrastructure providers may initially propose to construct facilities that are integrated into light poles, monopoles, traffic signals, and other existing rights-of-way structures or assets, the reality is that your municipality should expect that very few small cell facilities will be constructed in this manner. For example, a light pole with a pole-top antenna and integrated equipment cabinet is shown below. As can be seen in the below image, there are almost no exposed elements or cables, and there is only a minimal intrusion into the rights-of-way. The rights-of-way in the below image appears to be largely undisturbed by the small cell facility integrated into the light pole.

Source: https://twitter.com/stealthsite/status/851882939633762304

However, in reality, many small cell facilities are likely to be collocated on existing wooden utility poles. Because these existing utility poles are almost universally incapable of integrating equipment cabinets within the pole’s base, as is in the above image, wireless providers and wireless infrastructure providers will additionally install equipment cabinets at ground level or mount the cabinets to utility poles in the rights-of-way. These facilities can create safety, aesthetic, and noise issues, including violations of the Americans with Disabilities Act of 1990 (“the ADA”).

An example of a non-integrated small cell facility is shown below. As can be seen in the below image, the small cell facility extends beyond the wooden utility pole, the cabling is loose, and there are equipment cabinets mounted at the top of the pole.

Source: https://www.cleveland.com/middleburg-heights/index.ssf/2018/05/middleburg_will_closely_regula.html

These rights-of-way impacts and concerns are compounded by the increased number of small cell facilities necessary to operate a small cell network. Regulating how and when small cell facilities can be collocated in your municipality’s rights-of-way is key to addressing a municipality’s concerns such as safety, noise, aesthetic, and undergrounding of ground-level facilities.

V.    How should my municipality respond to requests to collocate small cells or construct wireless support structures in its public rights-of-way?

When a municipality receives a permit request or application to collocate a small cell facility or construct a wireless support structure, there are three sources of law that must be followed: (1) federal law, (2) state law, and (3) local law.

1)     Federal Law

Under federal law, all requests will fall into one of three categories: (1) collocation of a small cell facility that will cause a “substantial change,”[4] (2) collocation of a small cell facility that will not cause a “substantial change,” also referred to as an “eligible facilities request,” and (3) any request that is not for collocation, such as construction of a wireless support structure. While each category is subject to slightly different review standards and procedures, one of the primary differences between the three is the number of days a municipality is allowed to review a request and the remedy for failing to act on a request within this period of time (shown below).

Type of Permit Request Review Period Remedy
Collocation that is not a “substantial change” 60 days Deemed Granted
Collocation that is a “substantial change” 90 days Judicial Cause of Action
Non-collocation request 150 days Judicial Cause of Action

Under current federal law, if a wireless provider or wireless infrastructure provider applies for a permit to collocate a small cell facility that does not result in a “substantial change,” a municipality must approve this application within sixty (60) days.[5] A municipality is not permitted to deny such an application. Instead, a municipality’s only recourse is to show that the proposed collocation causes a substantial change, exempting the application from treatment under Section 6409(a) and its 60-day review period.[6] If a municipality fails to approve a permit within sixty (60) days of receiving a complete application, the application will be automatically approved. This is known as a “deemed granted” remedy.

While an initial collocation is almost always going to qualify as a “substantial change,” subsequent small cell facility collocations do not qualify as “substantial changes” per se. In this way, after allowing an initial collocation on a utility pole, a municipality may be at risk of being forced to approve additional collocations without any substantive means of denying the subsequent permit applications.

For more information on the details and impacts of federal law, please consult your legal counsel or the attorneys at Bradley Berkland Hagen & Herbst LLC.

2)     State Law

After determining how to process a permit application or request under federal law, a municipality should next examine their state law. Often, state small cell statutes will reduce review periods, limit the criteria by which a permit can be denied, and limit fees that municipalities can charge. A list of states that have passed small cell laws can be found here. In short, state small cell statutes are rarely, if ever, helpful for local governments. Instead, these statutes almost invariably limit municipal authority. For example, Oklahoma’s small cell statute reduces the 90-day review period in federal law to 75-days and limits fees to $42 per small cell facility collocated on a municipally-owned utility pole in the rights-of-way.[7] If your state has enacted a small cell statute, it will be important to understand the restrictions and limitations placed on your municipality by state law in addition to federal law.

If your municipality is in a state that hasn’t passed small cell-specific legislation, your municipality should nevertheless look for any processes or requirements that apply generally to wireless towers. These statutes were likely enacted with macrocell towers in mind but are often applicable to small cells.

3)     Local Law

Finally, your municipality should examine its local law to determine how to process an application. Many municipalities have passed ordinances governing the municipality’s rights-of-way or wireless towers, but some municipalities have passed small cell ordinances as well. While no small cell ordinance “may prohibit or have the effect of prohibiting the ability of any entity to provide any interstate or intrastate telecommunications service” (i.e., a prohibition on the collocation of small cell facilities within a municipality), these ordinances do allow a municipality to enact design standards, undergrounding requirements, and other zoning restrictions.[8]

If your municipality has not already enacted a small cell ordinance, please speak with an attorney at Bradley Berkland Hagen & Herbst to discuss how your community’s unique needs and interests can be addressed through an ordinance or other legal mechanisms.

[1] https://www.commscope.com/Docs/Powering_5G_Cell_Densification_WP-112370-EN.pdf

[2] https://www.smartworkspartners.com/state-legislation

[3] Collocating a small cell means attaching a small cell to any existing wireless support structure such as a utility pole or a building. Collocation is often confused to mean attaching a small cell to an existing wireless support structure that already has a small cell. This would imply collocation of the small cells themselves, but under federal law, it is the small cell and wireless support structure that are being collocated.

[4] 47 C.F.R. § 1.40001(b)(7) (2015).

[5] Id at § 1.40001(a).

[6] Id at 1.40001(c).

[7] http://webserver1.lsb.state.ok.us/cf_pdf/2017-18%20ENR/SB/SB1388%20ENR.PDF

[8] 47 U.S.C. § 253(a) (1996). See 47 U.S.C. § 332(c)(7)(A) (1996).

Net Neutrality Rollback? Restoring Internet Freedom Order Approved in December 14, 2017 FCC Open Meeting

As anticipated, the Federal Communications Commission voted earlier today to overturn the 2015 Protecting and Promoting the Open Internet Order adopted under former FCC Chairman Wheeler.  The Commissioners voted along party lines, with Chairman Pai, and Commissioners Carr and O’Rielly approving Chairman Pai’s Restoring Internet Freedom Order and Commissioners Clyburn and Rosenworcel dissenting.

Among other things, the adoption of the Restoring Internet Freedom Order will:

  • return the classification of BIAS to that of an information service;
  • reinstate the private mobile service classification of mobile BIAS;
  • adopt transparency requirements that ISPs disclose information about their practices to consumers, entrepreneurs, and the Commission;
  • turn over broadband consumer protection authority to the FTC;
  • and eliminate the Internet Conduct Standard.

Note that the Restoring Internet Freedom Order is not yet in effect and has not yet been released.  Rather, the Restoring Internet Freedom Order will take effect upon approval by the Office of Management and Budget of the new transparency rule that requires the collection of additional information from the industry.

A thoughtful analysis of the impact of today’s events to follow.

Key Considerations for Development of a Community Broadband Network

Rapid deployment of high-speed broadband service to many large and mid-sized cities throughout the United States has led rural communities to believe that they are left out because incumbent providers have not committed to expending the necessary capital to upgrade antiquated networks.  Rather than doing nothing or waiting for cable television companies to improve their existing networking, many communities are considering the options available to develop community broadband networks.

Regardless of the size and resources of a community or the deployment options that a community may have, it is important to develop a general approach for the process and adjust the approach as necessary as the process proceeds. Because each community broadband project is unique the process suggested below is for guidance purposes only to get the process underway.

  1. Create a project team: Although policy makers within a city are responsible for ensuring the authority exists for the development of upgrading the existing networks and affordable access to them, it is important to unite additional players and key stakeholders in the process.
  2. Identify and set community goals by identifying the needs for high-speed Internet access through surveys and needs assessment.
  3. Identify existing providers and the current available services and prices for the services they provide. Engage with these providers, it may be in their best interest to work with a community than compete.
  4. Conduct an assessment to identify the existing infrastructure and any available services that exist.
  5. Review and streamline existing zoning, permitting and construction processes.
  6. Review fee and tax structure to identify what incentives, if any, can be provided to potential providers.
  7. Identify target time periods for network deployment.
  8. Identify whether proposed network is for the specific community only or will surrounding communities in region be included in the network by engaging with neighboring cities, towns and counties.
  9. Consider bringing in a consultant to help assess and organize information gathered and provide guidance on various business/entry models including: legal analysis, development of a feasibility study, developing a business model(s), and review proposals that would meet the business model and assist in negotiating terms of agreement.
  10. Consider and review available financing options including sources for capital funding. There are many funding sources that may be available to a community including federal and state funding. Consider public-private models rather than relying exclusively on municipal funding.

Adrian Herbst and Leslie Herbst-Saporito Join Bradley Law Firm

We are pleased to announce that Adrian Herbst and Leslie Herbst-Saporito have joined Bradley Hagen & Gullikson as partners. They will join Mike Bradley in his telecommunications practice at the firm. Both are coming from the well-respected municipal telecommunications law firm of Baller Herbst Stokes & Lide.

“I am so pleased to have Adrian and Leslie join our team,” said Mike Bradley. “No one in Minnesota has more municipal telecommunications legal experience than Adrian Herbst. It is a real honor to have him join us.” Adrian brings over 30 years of municipal telecommunications legal experience to the firm. He served as the City Attorney for the City of Bloomington for many years before going into private practice. He has been a leading attorney in municipal cable franchising, rights-of-way management, and municipal broadband planning. Indeed, Adrian negotiated many of the initial cable television franchises in the Twin Cities.

Adrian has also been a leader in many municipal organizations.  Adrian has served as President of the Minnesota Trial Lawyers Association and Vice President of the League of Minnesota Cities.  He is a charter member of the National Association of Telecommunications Officers and Advisors (NATOA), as well as various other legal organizations including the International Municipal Lawyers Association (IMLA), the Federal Communications Bar Association, and the Telecommunications Committee of the Minnesota State Bar Association. Adrian is a member of the State Bar of Minnesota.  Like Mike Bradley, Adrian holds the highest AV rating with Martindale‑Hubbell.

Leslie, Adrian’s daughter, is an emerging municipal telecommunications attorney in her own right. She has assisted local governments throughout the country on all aspects of cable service franchising and telecommunications rights-of-way management issues. She is experienced in drafting, negotiating and enforcing cable and telecommunications franchises and revising right-of-way ordinances.

“I feel very fortunate to have the opportunity to work with Leslie,” said Adrian Herbst proudly. “I have known and consulted with Mike for many years on municipal telecommunications issues. I’m excited about the synergies of our practices.”

Most recently Leslie has been working on competitive cable franchises for municipal clients in Minnesota.  “Our firm has been a leader in helping cities negotiate competitive cable franchises resulting in wire-line cable television competition for the first time ever in the Twin Cities,” said Bradley, “Leslie’s experience will build on that success.”

In the coming months and years, local governments will be challenged to ensure their residents have access to adequate broadband services. This issue particularly affects rural areas. Many cities are also facing a rise in cell tower applications as mobile phone companies look to increase their coverage and bandwidth for consumers. This increase in demand coupled with recent changes to the law require local governments to reassess its current approach to cell towers. According to Leslie, “it’s an exciting time to be representing local governments on telecommunications issues with recent developments, such as competition in cable, cell tower and broadband planning. I think the firm is in a great position to help local governments navigate successfully through these issues.”

Bradley Hagen & Gullikson is a Twin Cities based law firm located in Woodbury, Minnesota.

 

Attorney Leslie Saporito

Leslie Herbst-Saporito

Attorney Adrian Herbst

Adrian Herbst

Attorney Mike Bradley

Mike Bradley

 

 

 

New Broadband Recommendations for Minnesota

The Minnesota Governor’s Task Force on Broadband has made a new set of policy recommendations to Governor Mark Dayton and the Minnesota legislature.  They include:

Update Minnesota’s statutory broadband speed goal – It is a state goal that no later than 2022 all Minnesota businesses and homes have access to high-speed broadband that provides minimum download speeds of at least 25 megabits per second and minimum upload speeds of at least 3 megabits per second. Also by 2026, it is a state goal that all Minnesota businesses and homes have access to at least one provider of broadband with download speeds of at least 100 megabits per second and upload speeds of at least 20 megabits per second.

Infrastructure grant program – The Task Force recommends appropriating $200 million to the Border-to-Border Broadband Development Grant Programing FY 2016-17. While this figure is a fraction of the total capital investment required to meet the state’s border-to-border broadband objective, it is an important contribution.

Create an Office of Broadband operating fund to promote broadband adoption and use – The Task Force recommends that the fund be managed by the Office of Broadband Development, at a specific amount to be determined between the Office of Broadband Development and the 47 National Broadband Map, available at http://www.broadbandmap.gov/rank/all/county/minnesota/percentpopulation/demographics-income-median-income/ascending/speed-download-greater-than-25mbps. 48 Provided by Marc Johnson of East Central MN Educational Cable Cooperative (ECMECC). 49 http://mn.gov/deed/images/education-superhighway.pdf, slide 23. 36 legislature, that will allow the Office to advance and support programs and projects aimed at promoting broadband adoption and use.

Increase telecommunications aid for schools and libraries – The Task Force recommends funding library telecommunications aid at $6.6 million in FY 2016-17, and increasing the telecommunications aid equity for schools to $9.75 million in FY 2016-17. This funding will expand the impact of the program in underserved areas of the state and help ensure every person has access to reliable broadband service.

Expand existing sales tax exemption for telecommunications equipment –The Task Force recommends the existing sales tax exemption for telecommunications equipment be made permanent to provide certainty to providers and enable thoughtful, future-oriented investment planning. Further, the Task Force believes policy makers should examine the possibility of expanding the exemption to include additional equipment, including fiber, conduit, poles, wires, and cable, that would assist in network development efforts.

Reform regulations of Minnesota’s telecommunications industry – The Task Force recommends reforming the regulatory framework underlying Minnesota’s telecommunications industry to reflect the modern communications era, bringing regulatory certainty, competitive equity, and relevance to an industry in the midst of dramatic change, while also addressing consumer protections.

Review existing permitting criteria to see where there might be opportunities for efficiencies – The Task Force recommends an administrative review of existing permitting requirements impacting broadband network deployment to determine where there may be opportunities to ensure the most efficient processes are in place. Uncertainty over permitting timelines and requirements can delay or prevent network deployments from moving forward.

Here is a link to the 2016 Governor’s Task Force on Broadband Annual Report.

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