FCC preemption of local street pole ownership takes effect in January

by Steve Blum • , , ,

The Federal Communications Commission wasted no time in publishing its new rules regarding how cities and counties can regulate (or, really, not) small wireless facilities in the federal register. That means most of the rules take effect on 14 January 2019, unless one of the promised lawsuits materialises and a court puts everything on hold.

The new rules don’t force local governments to do anything – the FCC doesn’t have authority. But state and federal courts do, and the intent is to set standards that judges will apply when settling disputes between wireless companies and local agencies.

From the FCC’s point of view, when the rules take effect, local governments will have to give mobile carriers and, perhaps, other wireless companies open access to street light poles, traffic signals and any other municipal property in the public right of way. The most the FCC thinks a city can charge for leasing out that space is $270 per year.

One time permit fees are supposed to be limited to recovering processing costs. The FCC thinks those should be capped at a total of $500 for all required permits, for up to five installations. California already has a law in place – proposition 26, passed in 2010 – that limits permit fees to actual costs, and cities and counties here have established processes for calculating them. In theory, that should take precedence over the FCC’s safe harbor number, but that’s still to be determined.

Annual lease fees are also supposed to be cost based, so the FCC’s $270 limit isn’t necessarily the final word. A lot depends on how those costs are defined and calculated. If it’s done via the same method that’s used to determine annual charges for attaching wireless equipment to privately owned utility poles, it might be less – in California, that cost is typically in the range of $25 per foot of occupied pole space per year. On the other hand, thanks to proposition 26, California cities and counties also have tested methods for determining actual costs, which might produce a higher figure.

Although the rules take effect in January, local governments can take an extra 90 days to figure out new aesthetic standards, which the FCC says must be published and be “no more burdensome than those applied to other types of infrastructure deployments”.