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).

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