Small cells are seen as the building blocks of 5G networks, and carriers say the most time-consuming part of deploying small cells is working with city governments and permitting authorities. Many different decision-makers within a jurisdiction may have input when it comes to small cells, and the result can be a series of lengthy negotiations. That's why some companies are pushing state lawmakers to pass legislation the pre-empts some local authority over small cell siting and fees.
Arizona, Colorado, Delaware, Florida, Illinois, Indiana, Iowa, Kansas, Minnesota, North Carolina, New Mexico, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Virginia, and Washington are the 19 states that have enacted small cell laws so far, according to the National Conference of State Legislatures. Several more bills are pending in state legislatures. Some city governments argue that these laws strip them of the power to act in the best interest of their citizens. In California, pushback from local leaders prompted Governor Jerry Brown to veto a statewide small cell siting bill.
Now the FCC is considering language that would guide states as they develop new small cell laws. Its Broadband Deployment Advisory Committee is developing a State Model Code for Accelerating Broadband Infrastructure Deployment and Investment. During a recent hearing, the BDAC reviewed the key tenets of the code.
The model code starts with the premise that "siting, mounting, placement, construction, modification and operation of small wireless facilities is a permitted use by right" when it comes to the public right of way. It provides authorities 60 days to approve or deny a complete application, and that application is deemed granted if no determination is made within 60 days. Companies must notify the appropriate authority within seven days of commencing work on a site under a deemed granted application.
State laws based on this code would allow authorities to consider height, appearance and set back in deciding whether to approve applications. Applications can be denied of proposed small cells interfere with public safety or compliance with the Americans with Disabilities Act. An application may also be rejected if it "materially fails to comply with any applicable state authority."
The code would permit an authority to require an application for the installation of new, replacement or modified utility poles associated with the co-location of small cells. It recommends that authorities should have the power to propose that instead of building a new pole, service providers co-locate their small cells on an existing utility pole or an existing wireless support structure if the pole is located within 50 feet of the originally proposed location.
Fees should be determined through a cost-based approach, according to the code. Laws based on this code would require fees based on "actual, direct and reasonable costs," would allow fee caps, and would prohibit fees based on revenue or customer counts. The code would prohibit municipalities from requiring service providers to show RF coverage maps in order to prove the need for a particular small cell, and it would disallow the recovery of fees paid to outside consultants hired by municipalities to help evaluate small cell proposals.
The BCAC's working group that prepared the proposals was chaired by Kelly McGriff, general counsel at Southern Light. Before beginning his presentation to the group, McGriff shared a picture of a power line with strand mounted small cells on it, and highlighted the fact that in the nearby apartment building, residents were going onto their balconies to use their phones because they had no service inside.
The goal of the BDAC is to expand and accelerate broadband deployments, but the group has struggled to retain its members from the public sector. San Jose Mayor Sam Liccardo and New York City CTO Miguel Gamino have both resigned, saying the group was too biased in favor of private sector interests.
On April 25, the BDAC voted to approve both the Model Code for States and its Model Code for Municipalities, subject to the understanding that further work would be done to address inconsistencies. The FCC has appointed select members of the BDAC to a working group tasked with revising the Model Code for States and the Model Code for Municipalities with the goal of producing model codes that are harmonized with each other and with the BDAC’s prior recommendations.