Sneak peek at FCC’s pending preemption of local wireless reviews?


Some poles are history.

The Federal Communications Commission might have given us a preview of what its intended preemption of state and local discretion over wireless sites will look like. Later this month, commissioners will vote on whether or not to exempt replacement utility poles, that are used to support new wireless facilities, from historical preservation reviews. At the top level, it’s about extending an existing historical review exemption for towers to utility poles that aren’t presently supporting wireless equipment. (As a practical matter, pretty much any pole that’s being used for wireless purposes already qualifies as a tower).

But it isn’t much of a leap to read the narrow language regarding historical reviews, and imagine it being turned into the basis for a general preemption of state and local laws…

Small cell antennas are much smaller and less obtrusive than traditional antennas mounted on macro cell towers, but a far larger number of them will be needed to accomplish the network densification that providers need, both in order to satisfy the exploding consumer demand for wireless data for existing services and in order to implement advanced technologies such as 5G. We find that excluding the pole replacements at issue here from review under [historical preservation regulations] will allow providers to complete these deployments more efficiently. In addition, creating an exclusion for replacement of utility poles will promote consistency between the process that carriers and pole constructors must follow to comply with our historic preservation review requirements and those they must follow when building replacement poles that are subject to the requirements of other agencies applying [rules regarding federal lands].

Under the terms of the draft FCC order, if replacement poles aren’t of historical interest themselves and are “situated in the same hole as the original pole, are no more than 10 percent taller than the original pole, and are consistent with the quality and appearance of the original pole”, they will be exempt from historical preservation requirements. For now, the FCC isn’t extending another exemption criteria – “20 feet plus the height of an antenna array” – to replacement poles, but only because of the potential impact on historical sites.

This effort at the FCC is separate from a push in the U.S. senate to effectively wipe out local government property rights and strictly limit permit authority regarding poles and other vertical assets targeted by wireless companies.

Any bets on how the FCC’s general preemption of wireless site reviews will eventually read?