In June 2018, FCC Commissioner Rosenworcel released model agreements for small cell deployment.  Those agreements were developed by the city of San Jose, CA.  Commissioner Rosenworcel hopes that these “agreements can inform the work of cities and towns nationwide to support universal broadband deployment and expand the civic and commercial opportunities of the digital age.”  The documents include a master non-exclusive installation and property use agreement and a funding and reimbursement agreement. 

Meanwhile, the FCC has taken various actions intended to accelerate small cell deployment on federally controlled property.  The FCC recently sought comment on a draft Program Comment intended to address collocation on so-called Twilight Towers.  If adopted, the proposal would create a new exclusion from routine historic preservation review for new antennas mounted on Twilight Towers so long as the antenna mountings meet certain specified conditions. 

In March 2018, the FCC adopted rule revisions aimed at accelerating the deployment of next-generation wireless facilities. The rules became effective on July 2, 2018.  The Order amends the FCC’s rules to clarify that small wireless facilities are exempt from review under the National Environmental Policy Act (NEPA) and the National Historic Preservation Act (NHPA).  The FCC also: (1) amended its rules for NEPA compliance so that applicants are no longer required to prepare an Environmental Assessment (EA) when a proposed project would be located in a floodplain; (2) committed to specific timelines for review of EAs; and (3) modified and clarified the practices and expectations for engaging Tribal Nations and Native Hawaiian Organizations (NHOs) in historic preservation review for construction projects located off of Tribal lands.

Are federal legislators trying to get involved?

Yes, several bills addressing wireless infrastructure are currently pending.  Most recently, on June 28, 2018, U.S. Sen. John Thune (R-S.D.), and Sen. Brian Schatz (D-Hawaii), introduced S. 3157, Streamlining The Rapid Evolution And Modernization of Leading-edge Infrastructure Necessary to Enhance Small Cell Deployment Act (STREAMLINE Small Cell Deployment Act), which is intended to streamline the siting process for small cell deployment.  

The legislation would update the Communications Act to better reflect developing technology and facilitate the rapid deployment of 5G networks to meet consumer demand by setting reasonable standards for public review of infrastructure siting while recognizing the unique challenges for small municipalities.

The Act includes reasonable process and timeframe guidelines specific to small cell applications for state and local consideration. Among other things:

• Permits must be approved or denied on publicly available criteria that are reasonable, objective, and non-discriminatory.
• Small cell applications may be denied or regulated for objective and reasonable structural engineering standards, safety requirements or aesthetic or concealment requirements.
• Applications must be acted on no later than 60 days for requests to collocate equipment and 90 days for other requests.
• Flexibility and additional time is allowed for small municipalities (fewer than 50,000 residents).

The bill would also empower the FCC to grant flexibility by issuing a one-time 30-day waiver of the timeframes required for action upon a request by a state or local government.

Other provisions address requirements for reasonable state and local fees for processing applications.  For instance, fees must be publicly disclosed, competitively neutral, technology neutral, nondiscriminatory and based on actual and direct costs (including, for example, costs for maintenance and inspections).

In addition, changes to the Communications Act adopted as part of the Consolidated Appropriations Act of 2018 are aimed at spurring next generation wireless deployment by making additional spectrum available for mobile wireless broadband and requiring the Government Accountability Office (GAO) to develop a common form for applications for easements, rights-of-way (ROW), and leases to install, construct, and modify communications facilities on federal properties.  This includes a master contract to govern placement of communications facility installations on buildings and property owned by the federal government and specific time frames to grant or deny such applications.

What is going on at the state level?

Individual states are continuing to introduce, and pass, legislation intended to further small cell penetration in their state.  Other states are amending existing small cell laws to ensure they are up to date with the newest provisions and technology.  There are now over 20 states that have passed legislation with a handful of other states that still have pending legislation. 

While some states are working proactively to streamline and promote the efficient installation of small cells, Pennsylvania’s Public Utility Commission (PUC) attempted to buck the trend.

In March 2017, the PUC determined that operators of Distributed Antennae Systems (DAS) networks are not public utilities under the Public Utility Code and, therefore, not subject to PUC jurisdiction (i.e. not entitled to a certificate of public convenience (CPC) issued by the PUC).  The lack of CPCs would deprive the DAS networks of the right to exercise eminent domain and of exemption from local zoning ordinances, which are rights held by certificated public utilities in Pennsylvania.

After the PUC denied petitions for reconsideration of its order, one of the small cell providers filed a petition for review with the Commonwealth Court of Pennsylvania (Court) in June 2017. Just recently, the Court reversed the PUC’s March 2017 Order.  The Court determined that DAS network operators’ transport service is a telecommunications service under the Pennsylvania Code even though Wireless Service Providers (WSP) use it to transmit a service not regulated by the PUC (i.e. commercial mobile radio service (CMRS)).  The Court decided that DAS network operators are a public utility, reversed the PUC’s March 2017 decision, and returned jurisdiction to the PUC so that it may issue CPCs to providers of DAS.

Are other states weighing in? 

Virginia enacted two bills that amended its small wireless law.  The changes include new sections addressing: public rights-of-way (ROW) use fees for wireless support structures; the zoning of other wireless facilities and support structures; application reviews; and exceptions to zoning approval for routine maintenance and replacement of certain facilities. Various new definitions were also added. The changes became effective July 1, 2018.

Meanwhile, Tennessee enacted a new law that specifies how authorities can regulate the collocation of small wireless facilities.  The Competitive Wireless Broadband Investment, Deployment, and Safety Act of 2018, among other things: provides for maximum rates and fees; prohibits an authority from requiring maintenance or repair obligations not generally applied to other right-of-way (ROW) users; and specifies application processes and timeframes; including when the state is the ROW owner.  The law does not apply to the deployment of infrastructure outside of the ROW or taller towers/monopoles traditionally used to provide wireless services.  The law became effective April 24, 2018.

Illinois also enacted a new law that specifies how local authorities can regulate the collocation of small wireless facilities.  The law prohibits local government authorities from regulating, prohibiting, or charging for the collocation of small wireless facilities.  Additionally, the law provides that small wireless facilities should not be subject to zoning review if they are collocated in rights-of-way in any zone, or outside ROW in property zoned exclusively for commercial or industrial use. The law also addresses the application process, permissible application fees, the issuance of permits, and recurring rates. The law applies throughout the state except in municipalities with a population of 1 million or more, which effectively exempts the city of Chicago. The law became effective June 1, 2018.

Do other states have laws taking effect soon?

Yes, other states have passed similar state level small cell legislation that is effective now or will soon take effect.

Hawaii just enacted a new law establishes a permitting, application, review, and approval process for providers to install wireless facilities on state or county solely-owned utility poles, or install associated utility poles, in the ROW.  This law took effect July 1, 2018.  However, the law applies to permit applications filed with the State or county after December 31, 3018.

Utah recently enacted the Small Wireless Facilities Deployment Act which takes effect September 1, 2018.  Among other things, the  Act permits a wireless provider to deploy a small wireless facility and any associated utility pole within a ROW under certain conditions;  permits an authority to establish a permitting process for the deployment of a small wireless facility and any associated utility pole under certain conditions; describes a wireless provider's access to an authority pole within a right-of-way; and sets rates and fees for the placement of small wireless facilities and utility poles.

Oklahoma enacted the Oklahoma Small Wireless Facilities Deployment Act which, among other things, establishes: procedures for the deployment of small wireless facilities and utility poles within a right-of-way; a permitting process for wireless providers utilizing small wireless facilities and installing and maintaining utility poles in certain areas; procedures for wireless provider access to utility poles in certain areas; and permissible rates and fees for certain activities related to small wireless facility deployment.  This law becomes effective November 1, 2018.

Lastly, Missouri enacted the Uniform Small Wireless Facility Deployment Act, which establishes that an authority may not enter into an exclusive arrangement regarding the use of the ROW for the collocation of small wireless facilities or the installation, operation, marketing, modification, maintenance, or replacement of utility poles.  Municipal electric utilities are excluded from the definition of "authority."  The new law is effective January 1, 2019.

The above states are only an example of the multiple state actions that have passed thus far.  It shows that states are taking the initiative in modeling their laws to facilitate small cell deployment so that companies do not have to confront multiple challenges on the municipal and local level. We will continue to watch developments in this arena for you. Stay tuned . . .